Equality Bill [HL]

– in the House of Lords at 3:07 pm on 9th November 2005.

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Clause 9 [Human rights]:

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills 3:08 pm, 9th November 2005

moved Amendment No. 1:

Page 5, line 1, after "understanding" insert "among children and adults"

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills

My Lords, in moving Amendment No. 1, I wish to speak also to Amendment No. 2 with which it is grouped. At an earlier stage of the Bill, we tried to obtain an explicit reference in Clause 9 to the Convention on the Rights of the Child. I set out four main reasons for doing this. The convention is the most ratified of all human rights treaties. It is one of the most comprehensive treaties covering children's rights. Children are uniquely vulnerable and easy to ignore and England's 11 million children, unlike those in the rest of the UK, do not have a rights-based Children's Commissioner. On that occasion I was delighted that the Minister said that she would go away and think about how to ensure that the commission will work for children. That has always been our point—to gain assurances that children will very much be part of this vital new body. The Minister well understands that we are looking for a steadfast guarantee that children will be included in the establishment, operation and review of the commission, and that that will not be left to chance or good will.

Amendments Nos. 1 and 2, which we are debating today, avoid the problem of lists that the Minister described in her reply. "Children and adults" includes everybody. It could be argued that children are implicitly covered in the legislation. However, I strongly fear that without an explicit reference to children in the Bill the new commission will focus exclusively on adults. Experience shows that, where children are not explicitly provided for in an organisation, they are ignored or given inadequate resources and attention. That is why we have Every Child Matters and the new roles at local authority level of children's services director and lead member for children's services, to make sure that children get their fair share of attention and resources. That is the Government's own agenda.

Are we satisfied that the existing equality bodies are working adequately for children; that children's issues are part of their strategic planning; that they regularly consult children to find out about their experiences and what matters to them; that their casework includes those under 18; and that they are working with the Government and others to bring about greater equality for children's rights? If children are missing out now, what guarantees have we that they will not be kept to the margins in the future?

Working for children does not mean simply adapting what is written or done for adults; it means being child-focused from the start—consulting them, setting priorities relating to them, and having the staff and organisational competence to work effectively and systematically to improve their lives. I am reminded that the National Service Framework for Children, Young People and Maternity Services states that, until recently, children's needs in the NHS were seen as no more than,

"smaller beds and smaller portions of food".

We can all learn from that.

Involving children in knowing their rights and responsibilities as young citizens can be an immense power for good—both for them as individuals and for their families, schools and communities. Only this morning, I visited one of UNICEF's "Rights Respecting Schools", Kempshott Junior School in Basingstoke, and saw for myself the benefits—both academic and social—of incorporating an understanding of the convention into their citizenship education. That was at primary level; I was much impressed.

The UN Committee on the Rights of the Child has produced guidelines on establishing human rights institutions for children. It stresses the participation of children in the work of the institution, the need for tailored programmes to advance their human rights, and urges that:

"The legislation (establishing the institution) should include provisions setting out specific functions, powers and duties relating to children linked to the Convention on the Rights of the Child and its optional protocols".

I accept the Minister's assurances that the Convention on the Rights of the Child is covered in "other human rights" in the Bill, but ask that she think again about including a specific reference to children in this Bill setting up the commission. The task in establishing this new commission is not just to make sure children are not left out; it is to plan systematically to put them in. That will mean having a fresh approach and doing some things very differently. I believe my amendments will enable this to happen and I look forward to the statement the Minister promised us at an earlier stage. I beg to move.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, on Report I tried to have the Convention on the Rights of the Child referred to again explicitly, because I wanted to emphasise how necessary it was to include children as central to the commission's work. To have that in the Bill would certainly have encouraged the commission to take a broad approach to children's human rights, and to have regard to all the articles of the convention as well as the general comments and concluding observations of the Committee on the Rights of the Child.

I appreciated the Minister's point about lists. However, these amendments are a way in which the Bill can refer explicitly to children without opening up that problem. The amendment makes it clear that in promoting and protecting human rights the commission must work for and with children. The amendment ensures that no group is excluded; "children and adults" covers everyone.

Last week in a speech on citizenship—which I am particularly interested in—the Chief Inspector of Schools, David Bell, reported that one in five schools did not give enough priority to citizenship. He said:

"Whilst not claiming too much, citizenship can address core skills, attitudes and values that young people need to consider as they come to terms with a changing world".

I am sure that we all hope that the commission will play a major role in raising awareness among children on human rights and equality, because children are central to creating the kind of society that we all want, which is fostered on mutual respect, understanding and non-violence. As the noble Baroness, Lady Walmsley, said, children have particular communication needs. Information must be tailored to their age and understanding, and it needs to be available in the right places such as schools and health centres.

A commission will do much more than raise awareness, important though that is. Children comprise one-fifth of the population. The UK has a comprehensive set of human rights obligations to them set out in the Convention on the Rights of the Child and other instruments, and there are increasing concerns about children's asylum and immigration.

The report this summer from the Commissioner for Human Rights of the Council of Europe, Alvaro Gil-Robles, was critical of those areas of policy, as was the European Committee of Social Rights. There remains a lot to be done to improve UK children's human rights, as demonstrated by the annual review by the Children's Rights Alliance for England and not least by ceasing to imprison children. I am glad to see a Written Answer from the Government in yesterday's Hansard which looks a little hopeful on that point. We hope that the equality commission will be a major force for change in children's lives.

In considering whether children should be referred to explicitly in the Bill, we must ask ourselves one question. If children are not part of the legislation, will they be adequately and consistently catered for? My fear is that they will not be sufficiently central to the commission's thinking and actions unless they are in the Bill. I hope the Minister can accept the amendments, but if she is unable to do so I hope that she can set out her thinking in some detail on how she expects the equality commission to embed the rights of the child population into its plans and actions.

Photo of Lord Morgan Lord Morgan Labour 3:15 pm, 9th November 2005

My Lords, I support the amendment and I have three reasons for doing so. First, the Children's Commissioner for England does not have a specific remit on human rights, as he or she should. They are circumscribed in their powers, which rest on the Secretary of State, and in their philosophy because human rights are not brought in. We found some difficulties in this area when we discussed the hitting of children and the so-called "reasonable chastisement" provisions, which have been condemned on human rights grounds by international bodies, particularly in Europe, and against which there was no redress. I would like to improve the situation for children who are born and reared in England.

Secondly, I would like to safeguard the situation for children who have been born and raised in Wales. Under the Children Act, anomalously, the Children's Commissioner for England can interfere in the work of the Children's Commissioner for Wales. I find it in another context constitutionally bizarre that the Government who have introduced devolution should nevertheless reintroduce the well known tradition, "For Wales, see England". That seems a little out of date. It also means that the role, philosophy and independence of judgment of the Children's Commissioner for Wales—who has a human rights remit, as have the Children's Commissioners for Scotland and for Northern Ireland—may be compromised. Writing children formally into the Bill in human rights terms, which is already done in so many countries across the globe, would strengthen it.

The final point is that, apart from the practicalities, it is the right thing to do. Surely human rights apply to everybody. We would rear up in protest if human rights were curtailed on the grounds of race or religion, so we should do so on the grounds of age, in terms of people being either too young or, for that matter, too old. We should have equality of treatment and fulfil those aspects of the Bill, especially towards children, who are currently gravely neglected in this area.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, WC Fields had to be reminded that even children are human beings. Speaking as a lawyer, I am quite sure that the amendment is technically unnecessary because children are, undoubtedly, within the ambit of the Bill. However, speaking as a human being rather than a lawyer—the two are not necessarily identical—I can quite see the presentation value of such an amendment. I therefore support it with one caveat, which I will express to my old friend, the noble Baroness, Lady Howe of Idlicote. She spoke twice of children being central to the work of the commission, but all the vulnerable groups are central to the work of the commission. I would not like the commission ever to be captured by one vulnerable group. All of them must have parity of concern, esteem and care. Subject to that caveat, I am in favour of the amendment.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I suppose that being a lawyer and being a human being are not necessarily mutually exclusive, but I certainly support this amendment. It is important that children are put into the Bill. The other vulnerable groups to which the noble Lord, Lord Lester of Herne Hill, referred are also included, but including children is essential. After all, we have separate legislation for children and I would have thought that it was right that children should be explicitly acknowledged as the subject of these provisions in the Bill. I notice that it is proposed that the Bill will be amended later in relation to the European Community enactment. I cannot see any objection to making explicit this particular group—children—in the Bill on any grounds concerned with lists or the like.

Noble Lords:

Hear, hear!

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very grateful to noble Lords for their applause, if I can call it that.

Nothing at all divides us on the principle that children are central to the Bill—I take what the noble Lord, Lord Lester, said about what central should mean and the need for all vulnerable groups to be central to the work of the commission. It is absolutely critical that the new commission should promote the rights of children and young people just as it promotes those of adults. I will say a little about what that means in practice because I was much taken with what the noble Baroness, Lady Walmsley, said about wanting the guarantee that that will be crystal clear. I want to bring life to that guarantee so that the noble Baronesses, Lady Walmsley and Lady Howe, will feel confident about what I have to say.

We are absolutely clear that the new commission must consult with children and young people, and do that effectively. That means working very closely with organisations such as the Children's Rights Alliance, but also in less structured ways to ensure that the needs and priorities of children and young people are part of the priorities and planning of the commission. Innovative techniques will be required in order to engage with young people—noble Lords who have experienced working with children and young people will know that that is essential to ensure that we learn from children and young people what they want and need. That will be critical.

The commission will also need to address issues of equality and discrimination that directly affect children and young people—as much, as my noble friend Lord Morgan said, as for any other group, including older people. I am sure that your Lordships will know that discrimination legislation and human rights apply equally to all, regardless of age. The commission's job will be to promote human rights, and promote and enforce the equality enactments in relation to old and young alike. It will need to work in a joined-up way with other organisations whose remit covers children, particularly, as the noble Baroness, Lady Walmsley, says, the Children's Commissioner. We expect, want and desire a memorandum of understanding to be agreed between the commissioner and the new commission to ensure that that happens effectively.

On human rights, the remit will embrace children and young people. For example, the commission's inquiry powers will allow it to look into general discriminatory treatment of children and failure to meet human rights standards. Similarly, the commission will be expected to work with children and young people to tell them about their rights, and how those rights can be protected.

Noble Lords will know that we build on work that has happened with existing commissions, such as: the work of the Commission for Racial Equality, promoting youth leadership among minority ethnic groups; the EOC's work to combat gender stereotyping in children's early years; and the Disability Rights Commission's running of the educating4equality campaign, raising awareness of new rights for disabled pupils, and its work with the Qualifications and Curriculum Authority to ensure that awarding bodies do not discriminate against disabled pupils. I mention those because they are good examples—not necessarily with the high level of publicity that I would like—of how the commissions are already working. It is our intention to ensure that the new commission will do the same.

I will probably rue the day that I ever mentioned lists, and my phobia of lists. There is a difficulty with the amendment as it stands, however. I have had a conversation with the noble Baroness, Lady Howe of Idlicote, and say to her and the noble Baroness, Lady Walmsley, that I have tried hard to find a way that I could put this in the Bill that would not run me into difficulties because it would invite everybody to want a list—an issue that we have to take seriously. Also, the difficulty with the amendment is that when I took it to parliamentary counsel, they advised me that it would cast doubt over whether children were covered in the other provisions of the Bill. I know that is not the intention of the noble Baroness, Lady Walmsley. It could also, of course, narrow the scope of the clauses concerned, in that the commission could undertake its activities only with individuals, and not with public authorities and other bodies at a corporate level. I could not accept it if I wanted to, because it would not do.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, am I right in thinking that when Clause 9 refers to "human rights", it definitely refers to the rights conferred by the children's rights convention?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the noble Lord is absolutely correct.

I would like to say three things. First, I give you the guarantee that the commission will be promoting and working with and for children. Secondly, I will suggest to my honourable friend Meg Munn, who has responsibility for this policy and who I know will be delighted, that she meet with the noble Baronesses, Lady Walmsley and Lady Howe of Idlicote, to have one more go at looking at what might be done. As noble Lords will know, I take this issue very seriously. Thirdly, in the work that we do in establishing the commission, I will commit to come back to the House and ensure that we are very clear about how the commission is going to work with children.

Nothing divides us on this issue. I am fully committed to ensuring that the commission works closely with and for children. I simply cannot accept this amendment for the technical reasons I have given. I do, however, commit the commission and give the guarantee unreservedly.

Photo of Lord Morgan Lord Morgan Labour

My Lords, the Minister has cited the opinion of parliamentary counsel, saying that if one put "children" in this part of the Bill it would have to be written in elsewhere. Why can it not be done more generally? I do not see the obstacle, intellectually.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, as my noble friend Lord Morgan will know from earlier stages of the Bill, one thing I am keen to avoid is ending up with our having to ensure that we have covered every single group covered by the commission in every aspect of the Bill. The noble Lord, Lord Lester of Herne Hill, made it clear that the job of the commission is to work to protect effectively some of the most vulnerable groups in society. I am always anxious to avoid giving an impression in legislation that, because we have not written everybody else in, they are somehow not covered.

I was searching, working hard with very committed officials, for somewhere in the Bill where I could make the point without running the risk that I have just outlined. I cannot find it. These amendments do not work technically. I have made my commitments and believe that the noble Baroness, Lady Walmsley, will be comfortable with them because they are as strong as any commitment one will ever get from the Government. They are genuine commitments and I hope, on that basis, the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness Walmsley Baroness Walmsley Spokesperson in the Lords (Children), Education & Skills

My Lords, my ambition in life is to satisfy parliamentary counsel in the drafting of an amendment. I have not yet succeeded. However, I am most grateful to the Minister for her reply and for the support for the amendment from around the House. How strongly the House feels about this issue is clear from the views expressed. I am grateful for the Minister's reassurances. I am sure that the noble Baroness, Lady Howe, and I will be happy to take up her suggestion of meeting her colleague, Meg Munn. I accept what she said about the deficiencies of the amendment. The statements that she made are some of the strongest that we might have expected from a Minister on a subject such as this. We will certainly look for a review at some stage of how the commission is working for children, and the Minister has just promised us one. She will accept that it is our experience that if children have not been specifically mentioned, resources and attention have not always followed. Therefore, her invitation to review how well the commission is working on children will certainly be taken up by the children's mafia in your Lordships' House. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

Clause 14 [Codes of practice]:

Photo of Lord Alli Lord Alli Labour

moved Amendment No. 3:

Page 7, line 39, at end insert—

"(ea) regulations under Part 2A of this Act,"

Photo of Lord Alli Lord Alli Labour

My Lords, in moving Amendment No. 3, I shall speak also to Amendments Nos. 4, 10, 41, and 45. I say to the noble Baroness, Lady Walmsley, that I have satisfied her ambition before she has, because parliamentary counsel are very happy with my amendments.

I am sure that noble Lords will recall that on Report on 19 October, I moved an amendment asking the Government to look again at the possibility of extending the protections proposed for religious groups against discrimination in goods, facilities and services to the lesbian and gay community. I was truly grateful for the support I received, not just from those who spoke but from colleagues on these Benches. The Government have always maintained that it would be impossible to do the necessary consultations and establish the need for those protections during the passage of the Bill. This amendment, which is supported by my noble friend Lord Smith of Finsbury and the noble Lord, Lord Lester of Herne Hill, allows the Secretary of State to make a regulation to correct this mischief on the face of the Bill while giving sufficient time for consultation.

I do not intend to make a long speech. The Government have been most generous, and I hope that we have found a way to satisfy them as well as thousands of gay men and lesbians who will benefit from these provisions when they are eventually enacted. In anticipation of a favourable response from the Front Bench, like a Hollywood actor at one of those Hollywood ceremonies, I would like to say a few thank yous, and I may possibly shed a tear. I would like to thank my agent, Stonewall, for all its help in drafting and moving this amendment. I would definitely like to thank noble Lords on the Back Benches for their continued strong support for gay and lesbian rights. I would like to thank my noble friend Lord Smith of Finsbury who, less than half an hour after he delivered his maiden speech, stood up to speak in support of these amendments. I thank the noble Lord, Lord Lester of Herne Hill, who has seen this through with diligence and patience. My noble friend Lady Turner of Camden has always been in her place, not only during these debates, but during every piece of equality legislation that I have witnessed in this House. Of course, I will save the final thank you for my colleagues on the Front Bench until I have heard what they have to say.

It has been a real thrill and a privilege to be part of this mini drama. I beg to move.

Photo of Lord Smith of Finsbury Lord Smith of Finsbury Labour

My Lords, first, I support my noble friend Lord Alli in proposing his amendments. In the 21st century it cannot be right for people to be discriminated against in going about their lives, in buying or making use of goods and services, simply on the ground of their sexual orientation. Worse than facing that discrimination is the existence of discrimination in the law which gives a green light to those who seek to act out their discrimination in rather more violent ways, as sadly we have witnessed in the past few weeks. Therefore, it is incumbent on all of us to ensure that the law does not discriminate and that practice is not allowed to discriminate. These amendments will secure that objective and I strongly endorse and support them.

Secondly, as I do not have my noble friend's ability to speak after the Minister, I want to thank, in anticipation, my noble friends on the Front Bench and their right honourable friend the Secretary of State for the very constructive way in which they have sought to accommodate the principles and the feeling on these Benches and across the House.

Thirdly, in drawing up the regulations that we hope will arise if these amendments are passed, I ask that Ministers will be expeditious, that they will ensure that the consultation takes place, as is only right and proper, and that as soon as that consultation has taken place they will seize an early opportunity to put the regulations in place. Those ambitions have too long been unfulfilled. I look forward to the day when, with the help of my noble friends on the Front Bench, they will indeed be fulfilled.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I hope that the noble Lord, Lord Alli, will also feel able to thank me. I have every sympathy with the objectives that the noble Lord seeks to achieve with these amendments. I am certain that there should be no discrimination or harassment against anyone on any ground whatever, including sexual orientation. I also believe that the noble Lord will agree with me that respect has to be given to the susceptibilities of others on genuine—I stressed the word "genuine"—and deeply held religious beliefs. I am sure he will agree with me as his Amendment No. 41 states in subsection (3)(e):

"provides for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality)".

I very much hope that the noble Baroness will take reasonable and long-held religious views into account when drafting the regulations. While Amendment No. 41 says, in reference to regulations, that the Secretary of State "may" make regulations about discrimination or harassment on grounds of sexual orientation, there is clearly no compulsion. I hope that the noble Baroness is able to do that.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am very privileged to find myself supporting the noble Lords, Lord Alli and Lord Smith of Finsbury, on these amendments. With the benefit of foresight, rather than hindsight, it was clearly a mistake for the Government to introduce religious discrimination without introducing sexual orientation discrimination at the same time. That is water under the bridge. The great virtue of these amendments is that both kinds of unfair discriminatory treatment will be covered in legislation. I hope that the Minister will be able not only to accept the amendments but also to tell the House about the Government's timetable and the consultation so that we can have some idea whether this will happen sooner or later, without committing the Government to any particular dates.

Finally, I listened to the noble Lord, Lord Alli, in the best tradition of this House, spreading flattery and adulation across the House. I remind him and the House of what happened in the 19th century. There were two great constitutional historians; one called Freeman, and the other called Stubbs. They kept writing reviews of a flattering kind about each other's books. One day a wag wrote:

"Ladling butter from alternate tubs, Stubbs butters Freeman, Freeman butters Stubbs".

We all do it; and so much the better.

Photo of The Bishop of Newcastle The Bishop of Newcastle Bishop

My Lords, I too welcome the principle of non-discrimination on the grounds of sexual orientation and its extension into the areas of goods, services, facilities and premises. I am pleased that these amendments have been tabled today. I have one concern, which is not about the objective of the amendments but about the method being used. It is about the interface between the right not to be discriminated against on the one hand and the right to freedom of religion on the other. That interface can be a complex and sensitive matter. So there needs to be a careful balancing exercise. That is perhaps best achieved by having a careful period of parliamentary scrutiny.

Therefore, I wonder whether legislating by this means of simply being subject to affirmative resolution on a take it or leave it basis provides the opportunity for the kind of scrutiny which I think would be helpful. I do not question the objective of these amendments; I simply ask about the means by which we seek to achieve it. If the amendment is successful, as I hope it is, perhaps the Government will agree to engage in early discussions with the Churches and other faith communities on how their interests can be reflected in the provisions.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, like the right reverend Prelate the Bishop of Newcastle, I welcome the principle of non-discrimination on the grounds of sexual orientation. However, I oppose the amendments because they contain no guarantees of proper religious protections, which means that there could be alarming problems for Churches and religious organisations.

The amendments empower the Secretary of State to use secondary legislation to address sexual orientation discrimination. Under the wording of the amendments the regulations could include religious protections, but I am told that that is not required. Maybe they will; maybe they will not. If there are protections, what will they be? We do not know. There is uncertainty on this issue.

There might be circumstances in which a religious group may want to refuse a service because of its religious ethos. Church membership, for example, is often denied to people who do not accept the basic, ethical teaching of the Church—in much the same way as membership of a political party is denied. Religious groups must have protection against legal actions designed to attack their doctrinal convictions. I believe that that is a very serious point.

I have been contacted by the right reverend Prelate the Bishop of Winchester. He wanted to be here to speak to these amendments but has been unavoidably delayed in Winchester. His view is that these amendments have come much too late in our proceedings to allow proper consultation with those religious groups that would want to have their say about how this would be implemented. He is concerned that legislating by secondary legislation does not allow the opportunity for the proper parliamentary scrutiny that a Bill would allow. Here I echo what the right reverend Prelate the Bishop of Newcastle said.

The right reverend Prelate the Bishop of Winchester feels the whole thing has about it—in his words—"the same whiff of social engineering which was present in the wording of Clause 3, which talked about the creation of a society". The simple fact is that these amendments do not contain any religious protections, nor do they guarantee that they will be provided. That is why I do not support them and would like to hear what the Minister has to say.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, like the noble Baroness, Lady O'Cathain, and the right reverend Prelate the Bishop of Newcastle, I, too, am concerned about the detail that will presumably be brought in by affirmative order. It is not absolutely clear whether an affirmative order will be involved. I hope the Minister will confirm whether affirmative or negative procedure will be used.

I believe that everybody is agreed on the principle of equality; nevertheless, the details could be very worrying indeed. It is a question not only of religion but of the operation of the regulations and laws which will come about. The law of unintended consequences could very well come into play in this field.

For example, these laws will—I am seeking information here—presumably apply to people providing a couple of rooms for bed and breakfast. If I am wrong, perhaps I could be corrected. It may very well be that the person providing bed and breakfast has religious objections to people living as lesbians or homosexuals. In that case, she will presumably be criminalised if she refuses to give them a room overnight. I would like to know about that, for example, because we are talking about ordinary people now, not great hotel chains or other, larger, establishments. These are some of the problems that I can foresee.

The problem with proceeding now on the basis of this amendment—which will undoubtedly go through—is that when regulations come to us by affirmative or negative order, we can discuss them but we cannot amend them. We cannot add or subtract; all we can do is agree or disagree. In a matter as sensitive as this, we perhaps ought to consider whether there is another way of dealing with this problem. It is probably too late now, and I apologise for coming late to this matter. I had not wanted to intervene, but now that I have seen the amendments, I can see that there are some difficulties. I do hope that, because I have raised these difficulties, I will not be discriminated against on the basis that I might be, although I am not, homophobic.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour 3:45 pm, 9th November 2005

My Lords, I would like to congratulate my noble friend Lord Alli on the persistence with which he has campaigned for the rights of gay and lesbian people. I have done my best to support him from these Benches. I am very glad that, this afternoon, we on this side of the House are supporting what I think is a first step towards achieving non-discrimination on grounds of sexual orientation in respect of this group of people.

We have been talking about this issue for a very long time; it has been repeatedly discussed in this House, and there has been support from all sides of the House. I really think that it is about time that we passed this amendment and got on with the task of ensuring that, in future, people in this group are neither discriminated against nor harassed. Discrimination and harassment against groups of people on grounds of sexual orientation should be totally outlawed. I hope that we shall pass these amendments this afternoon and take a great step towards achieving that objective. I fully support these amendments.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, the noble Baroness says that she is in favour of not discriminating against people, which is a view shared by everyone. The noble Lord, Lord Stoddart, made a very important point. As I understand it, these decisions will come up in regulations and cannot be amended: they can only be accepted or rejected. As your Lordships know, it is not the convention to reject orders in this House. The right reverend Prelate the Bishop of Newcastle correctly said that there is a right not to be discriminated against. There is also a right for freedom of belief. I believe that many people will find there are more problems in the detail than there are in a general feeling that you should not be discriminated against.

The noble Lord, Lord Alli, said that the Government have been very generous and that many gay and lesbian people will benefit. I am sure that that is so. He had a touching catalogue of thanks for people to whom he wanted to express gratitude in the apparent belief that this matter was all over and done with. It reminded me of those people who write begging letters at the end of which, they say, "Thanking you in anticipation". The noble Lord is premature in his thanks. Whatever the views of individuals about discrimination, we should give more time to considering the effects of this amendment.

My noble friend Lady O'Cathain said that the new amendment covers the possibility of religious protections, but they are not required to be protected. There are examples such as a church hall being let out to gay rights activists. The church could refuse to hire its hall possibly to a Jehovah's Witness, under exemptions in Part 2 on religion, but it could not refuse to hire it to a gay Christian group. That would be sexual orientation discrimination. Even if protections are included in the regulations, because they are only secondary regulations, gay rights groups could go to court to try to have them excised. That is unlikely to happen, but it is a possibility.

We should think about what we are putting into primary legislation before we go that far. For example, a private hospital provides fertility services to infertile couples in line with its publicly stated Roman Catholic pro-life beliefs. It is perfectly reasonable to have those beliefs and to do that. But along comes a lesbian who applies for treatment and is refused. She could argue that the hospital has discriminated against her in the provision of services. Religious hospitals or organisations could be prosecuted for their religious beliefs and for applying them in the way they think is correct.

I am glad that the noble Baroness is smiling. That is always very encouraging. I really believe that there is more in this than writing, at the very last moment, something fairly fundamental into the Bill. I hope that the noble Baroness will assure us that more thought will be given to that. If we are not given that assurance, we will have to see what happens.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, I fully support these amendments. I am a little surprised at the way in which the debate is going. Perhaps I should not be surprised, because the kind of thing that is being said now is the kind of thing that has been said every time non-discriminatory legislation goes through Parliament. Fears are raised which are found to be groundless. Arguments are put forward that do not stand up to scrutiny. When an Act is placed on the statute book, we behave in a sensible way in interpreting the legislation. There is understanding that, initially, there might be a few difficulties in coming to terms with some of the minutiae. But we get over those problems. This issue has been before Parliament on a number of occasions, even before this Bill. It has been raised at every stage of the Bill's passage, and there has been ample opportunity to discuss the basic principles and some of the implications arising from it. After previous discussions in the Chamber and consultations with the Government we have come up with a series of fair amendments that meet all the objections. They will work in a practical way when the Bill is given Royal Assent.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, before the noble Baroness sits down perhaps I may say that the point that I raised about protections has not been discussed.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, I join those who have already expressed concern about the amendments. No one who has followed the Bill's progress through the House can doubt that when legislation seeks to make discrimination or harassment unlawful very complicated issues arise. I am sure that I am not alone in worrying about an amendment dealing with such discrimination being put before the House at this late hour, and by the suggestion that the law should be changed by regulations that cannot be amended. I hope that the least we can expect from the Government is that there will be extensive consultation before regulations are brought before the House. Perhaps the matter could be dealt with in that way. Some of our fears would be alleviated if we had the opportunity to see the shape of the regulations before they are put before the House for a vote. I agree entirely with my noble friend Lady O'Cathain that one would wish to see that the regulations provided some safeguards for religious communities.

Photo of Lord Tunnicliffe Lord Tunnicliffe Labour

My Lords, I support the amendments and urge the House not to undervalue its own powers of scrutiny of secondary legislation. There is a Select Committee of the House—the Merits of Statutory Instruments Committee, established 18 months ago. It now has significant influence. We examine every statutory instrument and bring a small number of them to the attention of the House. Departments are properly fearful of bringing forward orders that have not had proper consultation and cannot satisfy all the assurances sought by your Lordships. A couple of us from the committee are here today, and we shall look out especially for those orders to ensure that the assurances given by the Government have been fully carried out. If not, the House has the power to vote the measure down. Do not underrate the power of secondary legislation. We should support it by expressing concerns and ensuring that there is full consultation. I have every faith that that will happen, and the House has the power to ensure that it does.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I welcome those developments, which make it possible to examine the provisions of subordinate legislation a good deal more fully than was possible in the past. I agree that there are difficult questions in drafting the regulations that will implement the amendments if they become part of the Bill. I assume that the Minister will undertake that nothing in the regulations will criminalise the practice of a person's faith in relation to the matters that may be the subject of the regulations.

Photo of Baroness Richardson of Calow Baroness Richardson of Calow Crossbench

My Lords, I should not want the House to assume that all those with a religious faith are automatically against such provisions being in the Bill. I support the amendment.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs) 4:00 pm, 9th November 2005

My Lords, this has been an interesting debate, and I could have predicted that these issues would be raised. I shall try to address them on behalf of the Government.

There is no question of a late-hour amendment. Throughout the passage of this Bill, I have met with every noble Lord who has put down an amendment in order to make sure that we have the right kind of dialogue. I think that every noble Lord would agree with that. So, as amendments emerge during the passage of the Bill, the Government are usually fully aware of what the amendments are about and why they have been proposed. Noble Lords will know that, at every stage of this Bill, this issue has been raised on all sides of your Lordships' House with real strength of feeling. I have also seen that today. Despite the reservations, the underlying principle behind the amendments commands huge support in your Lordships' House, and rightly so.

It was precisely because of the concerns that were raised that the Government were unable and unwilling to accept the amendments that came before your Lordships' House at the previous stage. As the noble Lord, Lord Waddington, said, consultation is a critical part of the development of the regulations. In a sensitive area such as this—we accept that it is—it is very important that we make it clear that we need to consult. We need to consult those who have a religious conviction; we need to consult those who have been discriminated against; we need to consult business; we need to consult all those who provide the services that we are seeking to regulate.

I smiled at the comment of the noble Earl, Lord Ferrers, about religious hospitals. It was not the "religious" but the "hospital" bit at which I smiled. It is difficult to imagine a hospital refusing a service to anybody. I take serious issue with that.

It will be an affirmative process. We want the maximum amount of consultation. We are not in the business of trying to criminalise individuals for strongly held beliefs. We are in the business of making sure that people cannot be discriminated against when that is inappropriate. I am extremely grateful for the tenacity of my noble friend Lord Alli, supported by his noble friend Lord Smith, the noble Lord, Lord Lester, and many other noble Lords on our Benches and other Benches, who worked incredibly hard to see what we could do in the Equality Bill that could support our belief that it is unacceptable to discriminate on grounds of sexual orientation.

It is the Government's intention to accept the amendment. It is an important moment because it will lead to an important change in the law. It will lead to much-needed protection against discrimination in areas of life where gay men and lesbians have suffered the kind of injustice and unfairness that can blight lives. It will lead to regulations that will mean that gay men and lesbians will no longer need to put up with discriminatory treatment in hotels or bars, in the financial services sector or in other services provided by the public and private sectors. Anyone who suffers such treatment will in future have the protection of the law. These changes can have a real impact on daily lives. They are one more step towards the society based on fairness and social justice that I believe every Member of your Lordships' House and certainly every member of this Government seeks. It will be another important step on the road to the comprehensive rights that the Government have sought to provide for gay, lesbian and bisexual people.

I congratulate my noble friend. I have listened with great care to the concerns that have been raised. We will be very mindful of the sensitivities involved. We will consult properly and widely. Your Lordships will have the chance to see what is happening for it will be done in a transparent and open way. I say to noble Lords who have concerns, "Please don't have the concerns; we will do this properly". We want to do it for the benefit of our entire society, but especially for those who have been discriminated against for far too long. It is a privilege to accept the amendment.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, perhaps I may intervene before the Minister sits down. It is commendable that she said that there will be full consultation. Indeed, she has been studiously concerned with consultation throughout. But if one consults with somebody who has one set of views and somebody who has another set of views, eventually the Government have to make their mind up. Once their mind is made up, what they decide appears in the regulations. Once the regulations are made, Parliament cannot easily alter them. Does the Minister agree?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the purpose of the consultation is to look at why people have strongly held views, the services they provide, the way in which this would work, and to reach—as far as we possibly can—an appropriate and consensual approach. Eventually, Parliament will have its day to look at the regulations. I suspect that my right honourable friend the Secretary of State for Trade and Industry will determine that there will not be one big group of regulations. Rather, the consultation will take place over a period of time. The timetabling issues will be for my honourable friend Meg Munn to work out. I am sure more of such detail will emerge as the Bill reaches another place.

Have no fear; we will ensure that what comes before your Lordships' House is properly thought through. The Government will take a view, but Parliament will have its chance too.

Photo of Lord Alli Lord Alli Labour

My Lords, first I thank the Minister for her kind words, and reiterate how pleased we are that the Government could accept these amendments. Subject to the noble Earl, Lord Ferrers, I would like to thank the noble Baroness, Lady Miller, for her contribution—not just today but, in brief, on 19 October. She made her support perfectly clear then.

In a sense, the arguments put forward today give all the justification one needs for this amendment to go through. Prejudice lives on. The argument for equality goes something like this. "We all want equality; it's a great thing. But, you know, if we're a religious organisation, we should still be allowed to discriminate against gay people". That has always been unacceptable to me. The quicker it changes, the better. I understand that there are deeply held faiths, and problems. I hope that during the consultation period, those come through and are discussed. But be in no doubt; the view held, I suspect, by the vast majority of noble Lords on this side, and in my party, remains that equality is not negotiable. It is an absolute.

I hope the Minister can pass on my thanks to her right honourable friend the Secretary of State for Trade and Industry for his personal intervention, and the way in which he has handled this matter. I want to thank the noble Baroness, Lady Scotland, who has been at the Dispatch Box more than once to listen to our arguments with her usual courtesy and frankness. I also want to thank the noble Baroness, Lady Ashton, who, throughout the Bill—not just on these amendments—has listened and acted. That is an important role to play. I sense that the debate is finished.

On Question, amendment agreed to.

Clause 27 [Conciliation]:

Photo of Lord Alli Lord Alli Labour

moved Amendment No. 4:

Page 15, line 32, at end insert—

"(da) a provision of regulations under Part 2A of this Act corresponding to section 66 below,"

On Question, amendment agreed to.

Clause 28 [Legal assistance]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 5:

Page 17, line 40, at end insert—

"(11) A reference in this section to a provision of the equality enactments includes a reference to a provision of Community law which—

(a) relates to discrimination on grounds of sex, racial origin, ethnic origin, religion, belief, disability, age or sexual orientation or to equality of opportunity between men and women, and

(b) confers rights on individuals.

(12) In its application by virtue of subsection (11), subsection (1)(b) shall have effect as if it referred to an allegation by an individual that he is disadvantaged by—

(a) an enactment (including an enactment in or under an Act of the Scottish Parliament) which is contrary to a provision of Community law, or

(b) a failure by the United Kingdom to implement a right as required by Community law."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, the purpose of this amendment is to enable the commission to support proceedings alleging that domestic legislation is incompatible with EC law in equality between men and women, or EC legislation combating discrimination on grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This covers provisions under Articles 13 and 141 of the EC Treaty, such as the Equal Treatment Directive, the Equal Pay Directive and the race and framework directives based on Article 13.

As the Bill is currently drafted, the commission will be able to provide assistance only where the proceedings relate wholly or in part to one or more of the equality enactments. These, as noble Lords will know, include all the domestic legislation prohibiting discrimination, such as the Sex Discrimination Act 1975 and the Race Relations Act 1976, as defined in Clause 33 of the Bill. There is therefore no provision for the commission to support an individual alleging, for example, that they have been disadvantaged by other GB legislation which they believe to be incompatible with EC equality and discrimination law. However, that is less extensive than the powers that are currently available to the Equal Opportunities Commission as a result of case law. As some noble Lords know very well, about 10 years ago a case was brought and won by the Equal Opportunities Commission. It concerned the adverse impact on women of certain employment legislation provisions that required two years continuous employment for full-timers to qualify for unfair dismissal and redundancy payments but five years for part-timers, who are of course mostly women. The courts were asked to consider whether those provisions were compatible with community law. The Law Lords found for the Equal Opportunities Commission, which had brought the case for a judicial review, but expressed the view that individual claimants should bring their claims not by way of judicial review but before an employment tribunal, supported by the Equal Opportunities Commission.

If we do not amend the Bill in that way, the new commission will not be able to support an individual bringing a similar case. That would mean that the new commission would have fewer powers than the Equal Opportunities Commission, which, as the House will know, has never been our intention. This amendment will enable the commission to do this to support a case in which an individual alleges that they have been disadvantaged by other legislation that they believe to be incompatible with EC equality and discrimination law. I commend the amendment to your Lordships' House and beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, in moving Amendment No. 6 and speaking to Amendment No. 5, I shall speak also to Amendments Nos. 7 and 8. The Minister explained clearly the object of the amendment, which I strongly support. It ensures non-regression; that is, it ensures that what the EOC can do will be able to be done by the new commission. There is just one snag, which comes from the problem of lists. I can see the Minister scowling but nevertheless I must deal with it.

The snag is that the way in which Amendment No. 5 is drafted does not properly reflect the EU race directive or the Race Relations (Amendment) Act 2000, so it does not properly reflect community law with regard to the other commission—the CRE. That is why my Amendments Nos. 6, 7 and 8 have been tabled, to fill the gap in the Government's amendment. To be clear, under EU law, nationality discrimination is forbidden, which is why Amendment No. 6 would add the word "national" and Amendment No. 7 includes the words "nationality (including citizenship)". That reflects both the race directive and the Race Relations (Amendment) Act 2000. That is why my Amendment No. 8 would include equal opportunity "between different racial groups", as between men and women.

This problem goes back to the well known problem that the noble Baroness, Lady Ashton, refers to often—the problem of having lists. The moment you have lists, you find that you may leave something out. It is important that the race side of the question has not been properly dealt with. I would not be surprised at all if the Minister were to say that the matter needs to be thought about further and dealt with in the other place. I should be entirely content with that—but I want to get right these provisions about giving assistance, as a matter of Community law. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I thank the noble Lord, Lord Lester, for his amendments to the government amendment. He and I have discussed them on a couple of occasions and he knows that I cannot accept his amendments today. It is not only the list issue—and I regret having set myself up in that regard. The list in paragraph (a) of the government amendment intends to reflect the body of Community law associated with Article 13 of the Treaty of Rome. National origin, nationality and citizenship are not included in the concepts in Article 13 and thus are not included in the body of the amendments. We cannot consider them at the moment, because, as the noble Lord knows from when he tabled his amendments, I have not been able to explore and get cross-government agreement. That is why I cannot move on that at this point. I have, however, asked my officials to continue to work with the noble Lord on these matters, and they are delighted to do so. They will talk to the noble Lord, and I expect us to make progress as the Bill moves into another place. The points are well made by the noble Lord—I am just not in a position to get the agreements I would need.

I sympathise entirely with the intention behind Amendment No. 8. It appears from the government amendment that we have given undue attention to equality of opportunity between men and women at the expense of other groups. That was not our intention. We consider that the reference in the amendment I have proposed to discrimination on the grounds of sex, racial origin or ethnic origin and other factors implies equal equality of opportunity for the groups concerned. Our intention in making explicit mention of equality of opportunity for men and women is to ensure that equal pay issues were clearly included within the body of relevant Community law. I accept the point, but I cannot accept the drafting. If the noble Lord will permit me, I will take this away, and the Government will propose at a later date some alternative drafting that gives effect to the intention he is seeking. On the basis that we will certainly look at Amendment No. 8 and that we will continue to work with the noble Lord on the other two amendments, I hope that he will feel able to withdraw his amendment today.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:15 pm, 9th November 2005

My Lords, the advantage of not being in government is that you can move quickly. The disadvantage of being in government is that it reminds one of the prehistoric animal called the diplodocus. Noble Lords will remember that if you trod on this beast's tail, it took five seconds for the message of pain to reach its head. The problem is that one has to consult widely, and I sympathise with that.

I want, with respect, to correct one thing. It is not just a question of Article 13 of the Treaty of the European Union. The four freedoms—freedom of labour, of services, and the other freedoms—that were under the original treaty, not under Article 13, must all be enjoyed without discrimination based on nationality. That is why one needs to put this right. But I appreciate that there needs to be further consultation across Whitehall and I hope that the diplodocus will eventually move in the other place. On that basis, I beg leave to withdraw the amendment.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, before the noble Lord sits down, I thank him for the correction. I will feed that back. Whenever he treads on my toes, I feel the pain instantly.

Amendment No. 6, as an amendment to Amendment No. 5, by leave, withdrawn.

[Amendments Nos. 7 and 8, as amendments to Amendment No. 5, not moved.]

On Question, Amendment No. 5 agreed to.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

moved Amendment No. 9:

After Clause 32, insert the following new clause—

"LEGAL ASSISTANCE FOR PERSONS OR ORGANISATIONS BEING INVESTIGATED ETC. BY THE COMMISSION

(1) This section applies where the Commission is—

(a) conducting an investigation under section 20, or

(b) issuing an unlawful act notice under section 21, or

(c) making an application to a court under section 22(6), or

(d) making an application to a court under section 24, or

(e) bringing proceedings under section 25, or

(f) giving legal assistance to an individual under section 28, or

(g) bringing an application for judicial review under section 30, or

(h) issuing a compliance notice, or making an application to a court, under section 32.

(2) In a case to which this section applies, where the defendant in a court or tribunal case or the subject of the notice or investigation is—

(a) an individual, or

(b) a charity, or

(c) an organisation of the type mentioned in section 57 of this Act, the individual, charity or organisation shall be granted legal assistance paid for out of central funds to enable them to respond to the case, the notice or the investigation.

(3) The Lord Chancellor shall make regulations providing for payment out of central funds for the provision of such legal assistance.

(4) The sections listed in subsection (1) of this section shall not come into force until the regulations mentioned in subsection (3) have been laid before and approved by resolution of each House of Parliament."

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I return briefly to my concerns about providing some form of legal aid for charities and religious groups who find themselves on the wrong end of legal action backed by the new Equality Commission.

I am grateful to the noble Baroness, Lady Ashton, who took time last week to discuss my concerns. She is a brilliant Minister who makes you feel she is listening to you—and I know she is. Even when she declined to amend the Bill to meet my concerns, she still managed to make me feel as if I was coming away with something. That is quite a skill. Not only does she deserve the honorary degree she received yesterday, on which I congratulate her, but if there were such a thing as an honorary degree in diplomacy she should get that too.

However, I remain anxious that, in a legal action over a controversial issue of religious liberties, the enormous financial and legal resources of the commission could be ranged on one side of a legal dispute, leaving a defendant on the other side with limited financial resources at a considerable disadvantage. A church or religious charity being sued would be left passing round the offering plate to raise money to pay lawyers. In these circumstances, even a bad case could make a lot of progress. It could even succeed. The inequality of resources could result in a miscarriage of justice.

The noble Baroness, Lady Ashton, does not think that I need to be concerned about any of these things. She does not believe that the commission would ever use its legal powers other than in the most gross and obvious case of discrimination that everyone would think deserved to be outlawed. I hope she is right. But the noble Baroness came to my aid and suggested that if I tabled these amendments she would make statements on the record which would, if I understood her correctly, give a steer to the commission to ensure that it does not use its legal powers in inappropriate ways against religious charities. I am happy to do so.

I will sit down and invite the Minister to give her reassurance before withdrawing my amendment. But before I do so, I ask the Minister to respond to a particular argument that I raised on Report. I have received legal advice which suggests that, where human rights issues are at stake, creating a massive inequality in legal resources between the parties—as the Bill does by providing legal assistance to one side but not to the other—may breach the European Convention on Human Rights. I should be very grateful to hear the Minister's response to that legal argument. I beg to move.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I am very grateful to the noble Baroness for giving her time last week to discuss these issues. I sought to reassure her and I intend that the noble Baroness goes away with something. We do not expect the commission to pick on organisations or to deal with them inappropriately. I am determined—as I am sure are colleagues across government—that the way in which we set up the commission will ensure that it is very clear about its work and focus.

The noble Baroness is absolutely right to consider that that is all well and good but to ask what would happen if the situation which she mentioned occurred and to ask what safeguards would be in place. I sympathise with the noble Baroness's concern that small organisations, whether charities, religious charities or small businesses, fear being treated inappropriately and oppressively by the commission. However, as I said, we need not fear that happening. The Federation of Small Businesses warmly welcomes the commission, as have many other organisations, including faith bodies and charities. However, I shall explain some of the processes involved and I hope that will enable the noble Baroness to feel more comfortable about the measure.

I asked officials to scale up what is spent by the commissions at present on supporting legal cases in employment tribunals, which is where the bulk of these issues are dealt with. The relevant figure is about 4.5 per cent, which is not huge given that supporting legal cases in employment tribunals is a core, fundamental part of the commissions' work. I believe that it is about right. In a budget of £70 million—if the officials have done their arithmetic correctly, which I am sure they have—the relevant figure is just over £3 million. About 250 significant cases are supported by the three commissions every year. I believe that figure will apply also to the new commission. Therefore, we are not talking about huge resources or huge numbers of cases. However, part of the fundamental purpose of the commission is to support cases as it will tackle discrimination where it arises.

The first safeguard is that the commission's job is to be sensitive to its stakeholders. If it fails to do that, it will lose authority and support. Sensitivity to stakeholders includes the fact that the commission needs to think very carefully about how it uses its resources. We have not set out in the budget particular sums that need to be spent on X or Y in view of the concept of independence that we discussed previously. However, it is very important that those involved in the commission, and those, including Parliament, who set it up, feel confident that it is using its resources efficiently and well. That is an important safeguard. As noble Lords will know from the Bill, the commission will need to consult on its strategic plan, including its legal and regulatory strategy. That is also an important safeguard.

However, I recognise that a small organisation could find itself defending an action brought by the commission. However, the checks and balances in the system ensure that a body in that situation is not disadvantaged. As the noble Baroness and I discussed—I know that the noble Baroness accepts this—most of these discrimination proceedings are brought in employment tribunals. Over the years employment tribunals' processes have increasingly been designed to ensure that the procedures which are used are very straightforward. We make formal representation unnecessary. In addition, in both the courts and tribunals clerks or judges or tribunal members themselves would seek to assist a person who was unrepresented with matters of procedure. If a case brought before the court or tribunal is vexatious, or does not disclose a cause of action, procedures exist that would allow the case to be terminated. Procedures are now in place in employment tribunals to sift out claims that cannot be substantiated. That, again, is an important safeguard. A tribunal application will be accepted only if the aggrieved party has been through the statutory grievance procedure with the employer, as required by recent reform to employment legislation, maximising the opportunity to have a non-judicial outcome.

Similarly, there are also procedures that allow a successful respondent in court to claim the costs of their defence. The bulk of these cases are dealt with in the employment tribunal, with straightforward procedures, no need for representation, and a sifting process to ensure that these are real cases and real claims and that vexatious claims are dismissed. Where a case might go to court, it is possible to claim the cost of the defence, which is important.

I also outlined on Report the safeguards built in when the commission exercises its other regulatory powers; for example, to compel evidence in the course of an investigation. In looking at devising these powers, we thought carefully about the need to ensure that there is a fair process for those who are subject to enforcement action. We believe that we have achieved a reasonable balance. The commission will be a public body and will be subject to review in the courts if it seeks to act unreasonably or unlawfully by the nature of it being a public body.

As the noble Baroness is aware, legal aid will be available to any individual facing proceedings in the county court, subject to the statutory means and merits tests. The noble Baroness, Lady O'Cathain, referred to the case of Steel and Morris v the United Kingdom. In that case—I refer to it because of the question the noble Baroness specifically asked me—the European Court of Human Rights ruled that the inability of the applicant to get legal aid had breached their right to a fair trial under Article 6. The court highlighted the exceptional nature of that case: at 313 days the longest in English legal history, 40,000 pages of evidence, 130 witnesses giving oral evidence, and a 762 page substantive judgment. In this "exceptionally demanding" case—as the court described it—a fair trial was not possible if one side lacked the resources to be represented or to cover the costs of mounting a defence.

That is why, in the Access to Justice Act 1999, the Government made exceptional funding available in cases which would normally be excluded from public funding. A grant would be made by Ministers if it was recommended by the Legal Services Commission and if the case has a significant wider public interest or an overwhelming importance to the client, or if it would be practically impossible for the client to defend the proceedings. The Steel and Morris decision was made in an exceptionally demanding case with an extreme disparity of resources, and we believe that the exceptional funding scheme remedies the deficiency in the legal aid regime that brought that about.

I have thought carefully about the proposal for a new fund that would provide legal assistance for an individual, a charity, or religious or belief organisation, subject to the commission's powers. But as I said on Report and as I have said to the noble Baroness, there are difficulties about the proposal, not least—and I make no bones about it—because of the pressures on legal aid funding, the need to control that and the other good causes that would, in a sense, come forward. It would have to be an establishment of a fund at the expense of other priorities.

I hope that all the safeguards I have now outlined will give the noble Baroness some comfort. I refer to the way the commission will be set up, the way that it is meant to deal with these issues, the approach it must take to its stakeholders, the way in which we would expect it to deal with its regulatory powers and the way in which the courts and tribunals now operate. I see very little danger, but if there were a danger I have already outlined what could happen. I say categorically that it is not our intention that the commission will be able to use any of its powers to pick on individuals, charities, religious or belief organisations or small firms. On that basis I hope that the noble Baroness will feel able to withdraw her amendment.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, I thank the Minister for her words. I hope that the commission and indeed the courts will pay heed to what she has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 33 [Equality and human rights enactments]:

Photo of Lord Alli Lord Alli Labour

moved Amendment No. 10:

Page 20, line 32, at end insert—

"(ea) regulations under Part 2A of this Act,"

On Question, amendment agreed to.

Clause 41 [Transitional: the Commission]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, noble Lords will recall that during the debates in Committee and on Report we discussed the issue of the term of office of the Disability Rights Commission transition commissioner. These two amendments seek to address the concerns expressed by noble Lords and to clarify the Disability Rights Commission transition commissioner's role.

On Report, the noble Lord, Lord Ashley of Stoke, the noble Baroness, Lady Darcy de Knayth, and my noble friend Lady Wilkins raised concerns about the term of appointment of the DRC transition commissioner not being of sufficient length to allow the wealth of knowledge and expertise that the Disability Rights Commissioner has built up to be transferred effectively to the new commission. On Report, I said that I understood the case for having the term of appointment of all three transition commissioners on a common basis and that it was a matter on which, in the classic way, I volunteered to reflect further. I have indeed reflected further, and these amendments are the result.

Amendment No. 11 removes the disparity between the term of appointment of the Disability Rights Commission transition commissioner and the transition commissioners nominated by the Commission for Racial Equality and the Equal Opportunities Commission. Amendment No. 44 clarifies the role of the transition commissioners, capturing the essence of the arguments put forward by noble Lords on Report, which is that the role of the transition commissioners is to ensure a smooth transfer of functions and expertise from the existing commissions to the new commission. We are ensuring that focus by precluding the possibility of the DRC transition commissioner being appointed as either a member or chairman of the disability committee. As the Disability Rights Commission has expressed it, the DRC transition commissioner is looking back, whereas the committee is looking forward exclusively. I beg to move.

Photo of Baroness Darcy de Knayth Baroness Darcy de Knayth Crossbench

My Lords, I warmly thank the Minister for both amendments, which were in response to amendments tabled in Committee and on Report by the noble Lords, Lord Carter, Lord Ashley and Lord Addington, the noble Baroness, Lady Wilkins, and me. That is a rather long preamble because none of them can be here, which they much regret. They are either at an important committee meeting or ill, so I am here to thank the Minister on their behalf. Their eloquence has paid off. I shall echo the noble Baroness, Lady O'Cathain, who has disappeared, and say that the Minister deserves a degree in diplomacy. This change is due to their eloquence and her unfailing ability to listen. She has reflected once again and has come up with the goods.

It is valuable to have the distinction. I am grateful for the transition commissioner going on for longer, because a certain number of cases might have been jeopardised otherwise. We are all extremely grateful.

On Question, amendment agreed to.

Clause 45 [Harassment]:

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, it is with considerable regret that I find myself in the position of being virtually forced to bring the amendment back at this final stage of the Bill, which in general terms is accepted by all parties as being very necessary in this day and age. The amendment is the same as that I proposed in Committee. It deletes two words from Clause 45, which describes the offence of harassment as being something that is done by one person, A, with "the purpose or effect" of violating someone's dignity or,

"creating an intimidating, hostile . . . or offensive environment for B", where B is another person. In the strongest possible terms, I object to the words "or effect", because they mean that we are not merely banning acts that are done with the express purpose of violating someone's dignity or intimidating or degrading B, but the Government want to ban acts that a person can claim have that effect.

The Oxford English Dictionary describes "effect", among many other descriptions, as "an impression", which is a purely subjective test that it is impossible to disprove. If B says something that has that effect, who will gainsay him? We have only to look at the events of the past few weeks to see what ludicrous effects politically correct opinions can have. I am not talking about the farcical decision to commemorate the Battle of Trafalgar as having been fought between the red and blue fleets, rather than between us and the French. I am talking about the nonsense of one local authority renaming Christmas lights as winter lights, about schools banning nativity plays and Christmas cribs, and about the kite flying over Bonfire Night claiming that it is offensive to Catholics. Actually, Bonfire Night commemorates the prevention of an act of religious terrorism.

I hope that the Minister will forgive me for saying this, but I am talking about the absolute farce of the Home Office—the department of one of the two Ministers conducting this Bill throughout your Lordships' House—threatening to withdraw support and funding for an annual carol service at St Martin-in-the-Fields, one of the most famous churches in London, on the grounds that it is too Christian. I wonder if the Minister's department has noticed that every year, a Christmas tree is erected in Trafalgar Square just in front of St Martin-in-the-Fields. Perhaps we will be expected to reject the Norwegians' generous annual gift, on the grounds that some mischief maker might claim that, as the Bill says, it has the effect of violating his dignity or humiliating him. Worse still, some mindless bureaucrat might decide that it might conceivably do so, however remote that idea appears to be.

The irony is that responsible spokesmen for all the major non-Christian religions have said time and again that the celebration of Christian festivals and the publication of biblical texts outside churches does not offend them in any way. Equally, I have never heard of any one person of the dominant faith complaining about the celebrations—sometimes colourful celebrations—of the festivals of other faiths.

I refer to the answer that the Minister gave me when I raised this matter on Report. She said that,

"it would always be open to those who had the 'effect' of discriminating"— she probably meant harassing—

"to say, 'I didn't intend it'".—[Hansard, 19/10/05; col. 821.]

With the greatest respect to the Minister, who is one of Her Majesty's learned counsels, I believe that that is totally incorrect.

The clause says nothing about the necessity of proving an intention to have that adverse effect. On the contrary, the intent aspect is entirely covered by the earlier words in the same sentence, which refers to acts for the purpose of having that result. In a letter to the noble Lord, Lord Lester, dated 2 November, which has been placed in the Library, the Minister said:

"Simply removing the words 'or effect' would mean only those actions which are carried out with the express purpose of violating another's dignity or creating an intimidating environment could constitute harassment".

Exactly—that is precisely the result that I am trying to achieve with this amendment.

The Minister also said that the same wording is found in other legislation, including that directly related to Sikhs and Jews, and that this amendment would create an inconsistency. Possibly because I found myself simultaneously coping with another major Bill and not having the benefit of flocks of paid researchers such as are enjoyed by Ministers and Members of the other place, I did not have the time to look up what she was talking about. If I had, I would have used this Bill as an opportunity to try to remove such a patronising and condescending provision at the same time. If such provisions exist elsewhere, as the Minister says, they are equally wrong. If we have not yet seen a crank or malicious claim, that does not mean that we will not in the future. It is certainly no excuse to leave a similar, objectionable provision in the Bill.

Earlier this evening, I said that the Minister could not accept the amendment, or did not want to. Actually, I think that it would create a considerable inconsistency, as she says in her letter to the noble Lord, Lord Lester of Herne Hill. It is not that she does not think that the words should go, but rather that it is difficult to get rid of them because they appear elsewhere.

The words that I object to, and wish to remove, are those that create an offence merely because a person claims that some act or other, however innocuous, has adversely affected him mentally. How is anyone going to be able to climb into the mind and see if it really did? Are we really going to have to rely on the courts to decide whether it was reasonable for him to take offence? I cannot understand why the Government are so obdurate in refusing to remove these two words. They do not prejudice the working of the clause.

I commented on Report that I was not supporting the amendment of the noble Lord, Lord Lester of Herne Hill—to delete Clause 47, as it was then—because I thought the Government would except the words "or effect". If you take those words out, the rest of the clause is a good one in that it stops people being harassed, intimidated or made nervous. With those words, however, it is totally unacceptable. So it is more than what I said before—that I had reservations because it was, in effect, throwing the baby out with the bathwater. It was purely that I thought that there was enough left in that clause to make a good clause. I did not want to force the Government to get rid of something that might be helpful.

The political correctness and cotton wool nannying that these two words generate can lead only to endless litigation. The Minister will tell me that they will not, because she can give me examples of other Bills that include them. They should not be in this Bill; they should not be in the other Bills. I am going to test the opinion of the House in a moment, and very much hope that we are going to be able to remove these two offensive words. They change what ought to have been a very good clause.

If the Minister is unable to accept that—I suspect that she is not, because she has been listening to me a lot and simply says no because it is inconsistent with other Acts and so on and so forth—I will advise all my noble friends that they will have to vote to get rid of Clause 45. I would be sad if that is what we would have to come to, because there is value in that clause.

If the Minister were able to agree with my amendment, there would be no need for the other amendment. However, the noble Lord, Lord Lester of Herne Hill, has kindly spoken to me at length and has suggested to me that I should not divide the House because I cannot win, and that, by advising my colleagues to vote for Amendment No. 14, that amendment could be won. I said to the noble Lord that I would think about it, and I did. Two points come to mind, however. First, if there is a wish to make this clause better, then I am amazed at what the noble Lord has said. He says that we could support him in getting rid of the whole thing, but he would not find it possible to support getting rid of the two words that make it offensive.

That is one reason why I will test the opinion of the House. If the reality of the situation is that we do not win, I will support the noble Lord, Lord Lester, and would advise my noble friends to do likewise. The second reason why I am not prepared to do as the noble Lord suggested is because, although I want to get rid of those words, I believe that the rest of the clause is acceptable. I feel that when you believe in something, you have to do what you believe. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 4:45 pm, 9th November 2005

My Lords, first, I make it clear that in speaking to this amendment I am speaking to the entire group of amendments. I am sure noble Lords will be relieved to hear that I shall make just one speech. Secondly, what I am about to say shows no lack of support for Part 2 in relation to religious discrimination. I have no difficulty about those provisions, which are very important and which we support. Thirdly, my object is to persuade the Minister and, for that matter, the noble Baroness, Lady Miller of Hendon, that the right thing to do is to remove this clause from the Bill and get it sent to the Discrimination Law Review so that it can be considered in the light of everything else and then it can come back and we can have a provision of which we can be proud.

Having said that, we have previously explained our strong objections to the way in which a broad and ill-defined tort of religious harassment has been included in the Home Office part of the Bill, creating a real risk of legal proceedings by the intolerant or the thin-skinned will be brought in the sensitive areas of housing, education or public services. I am not going to repeat them. We proposed that the complex issues surrounding this controversial tort should be removed and reconsidered by the Discrimination Law Review, and the Minister appeared to be sympathetic to that suggestion.

However, as the noble Baroness, Lady Miller, mentioned, on 2 November the noble Baroness, Lady Scotland, sent me the Home Office's reasons for insisting on retaining religious harassment in Part 2, rather than referring it to the Discrimination Law Review. I am sorry to have to say that it is clear from her letter—this is a bit hard, but it is true—that the Home Office still does not understand the most basic principles of discrimination law. I am delighted to see the noble and learned Lord, Lord Slynn of Hadley, in his place because I am going to refer to one of his judgments. The letter correctly states that Jews are covered by the Bill as an ethnic group but states that "part of designating them" as an ethnic group is "that they have a shared religion". It is not clear to whom the Home Office refers as "designating" Jews as an ethnic group. It is not for it to do so. In any case, it is not true. The letter also asserts that the Race Relations Act protects Jews,

"from religious as well as ethnic discrimination and harassment".

I have heard similar views expressed by the Muslim Council of Britain. They are without foundation, and it is a matter of concern that they are given credence by the department responsible for the operation of the Race Relations Act.

It has been clearly established for a quarter of a century, since the decision of Mr Justice Slynn, as president of the Employment Appeal Tribunal, in 1980 in the case of Seide v Gillette Industries Ltd, which the noble and learned Lord may remember, that Jews are included within the Race Relations Act only as victims of racial, and not religious, discrimination. That decision was followed in the case of Tower Hamlets London Borough Council v Rabin in 1989 and was relied on in the House of Lords case Mandla in 1983. It was also shown in the New Zealand Court of Appeal case called King-Ansell. Jews are protected under the Race Relations Act not because they have a shared religion but because of their shared ethnicity, whether real or as perceived by anti-Semitic discriminators. Exactly the same protection applies to Muslims—I am sorry there is no Muslim Peer here today—who are protected if they have an ethnic identity as well as a religious one; for example, because of their colour or national origins. The typical anti-Semite who persecutes Jews does not usually do so because of their religion but because of what he regards as their tainted ancestry and their blood. The Nazis murdered anyone with Jewish ancestry irrespective of their religious beliefs. It is profoundly dispiriting to encounter such misunderstanding of anti-Semitism and of discrimination law and it is offensive to the memory of millions of Jews slaughtered in pogroms and in Nazi extermination camps. Jews were persecuted and exterminated on the Continent because of their actual or presumed Jewish identity or origin. They were not spared because they were atheists or agnostics.

It has even been suggested by the Minister that Jews may be removed from the protection of the Race Relations Act altogether and given protection only on religious grounds. I cannot believe that she would really do that because that would be a regressive step that would not only breach the UK's obligations under the European convention, the international covenant and the CERD, but it would also be deeply offensive to the victims of the Shoah and to the entire Jewish community. When the first Race Relations Act was enacted in 1965, with Sir Frank Soskice at the Home Office, it was done in part to combat an increase in racial anti-Semitism. It would be outrageous to withdraw that protection because Muslims as such are not a racial group. I hope that we shall not hear that suggestion again.

The true position may be summed up in this way. There is religious anti-Semitism and there is racial anti-Semitism. Before the 19th century, anti-Semitism was primarily religious in nature, based on Christian or Islamic interpretations of Judaism. That form of prejudice and discrimination is directed at the religion itself and so usually does not affect those of Jewish ancestry who have converted to another religion. That form of anti-Semitism is covered by the religious discrimination provisions in this Bill, just as religious Islamophobia is covered.

Racial anti-Semitism is a kind of xenophobia rooted in ideas of race. Racial anti-Semitism became the dominant form of anti-Semitism from the late 19th century until today. It replaced the belief that the religion of Judaism was to be hated with the idea that Jews themselves were a racially distinct group regardless of their religious practice and that they were inferior or worthy of animosity. It is racial anti-Semitism—will the Home Office please listen and note?—that is made unlawful under the Race Relations Act, just as racial Islamophobia is covered by the Race Relations Act.

To meet the criticism of extreme vagueness of religious harassment, the Home Office relies on the fact that similar language has been used in regulations to give effect to EU directives. That is true and it is regrettable that the Government have not exercised the option under the directives to define harassment more precisely to accord with the British legal tradition. In any event, the provisions of Part 2 of the Bill are not required by EU law; we have a free hand. The Home Office letter adds:

"If it is desirable to define harassment more closely we consider the place to do so is the Discrimination Law Review where the issue can be looked at across various discrimination strands, not in relation to one equality strand alone".

We agree and that is why we seek to remove the tort from the Bill so that it can be considered by the review instead of being a flawed part of the law of the land.

To meet the criticism that the Home Office has inconsistently excluded religious, unlike racial, harassment from the provision of goods, facilities and services to the public while keeping it for housing, education and public services, the Home Office has come up with an entirely new and misguided argument. It says that,

"significant power is exerted in a relationship, as it is in public functions, or employment or education or in the relationship between landlord and tenant".

That is a novel argument that I have never heard before in an attempt to justify not following the Race Relations Act in relation to racial harassment, which applies to goods, services and facilities. The first answer to that argument is that the Race Relations Act draws no such distinction based on significant power—whatever that means—and the Home Office cannot explain why a different approach should apply to religious harassment.

Surely significant power may be exerted in relationships covered by Clause 46, such as between a bank and its customers, or an airline and its passengers, or a theatre and its audience, or a hotel manager and his guests. It makes no sense to exclude the tort of religious harassment from those and all other Clause 46 functions but to include the tort of religious harassment in the relationship between a landlord and his tenants, or a teacher and her pupils, or in sensitive public services such as healthcare. If legitimate concern about the harmful effects of this vague tort persuaded the Home Office to exclude it from goods, facilities and services until the review is concluded and a new Bill is introduced, surely the same should apply across the board.

The Government also suggest that there is "a less obvious imbalance" in relation to the provision of goods, facilities and services to the public but "significant power" may be exerted in all these relationships. If it is right to,

"consider more deeply the position in relation to relations between individuals and service providers", as the Government say, then surely it is right to consider more deeply those matters in all contexts.

In Amendment No. 13, the Home Office now proposes to include an exception for the innocent,

"display of any material or article".

Clause 45 covers anything done that has the purpose or effect of violating a person's dignity or creating an offensive environment. The Home Office letter obstinately refuses to delete the effect leaving only "purpose" as proposed by the noble Baroness, Lady Miller. The Home Office believes that,

"to require proof of an intention to harass in the circumstances in which Clause 47 applies would be to go too far".

However, the newly fangled Home Office amendment states that,

"Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)".

So the Home Office now recognises the need to prove intent rather than the effects of action taken in connection with the display of any material or object, but not for example if a landlord plays religious music at Christmas in the entrance hall of his flats in an attempt to persuade his tenants to join the church and save their souls.

Even as amended, the religious harassment provisions would still catch proselytising by way of religious displays and materials such as posters, Bibles, crucifixes and so on because they involve deliberate attempts to persuade people of a different faith or no faith to join the church and they may be interpreted as harming human dignity—whatever that means—or creating an offensive environment. The display of a "Jews for Jesus" poster to persuade me to see the light would violate the dignity of observant Jews and create an offensive environment with the necessary mental element to constitute the tort. That is why the amendment tabled by the noble Baroness, Lady Miller, is not good enough. It would be a deliberate act causing offence to many Jews. Yet why should it be forbidden by law? It was because of concern for free speech that the Home Office did not apply religious harassment to booksellers. But the same considerations apply to what remains of religious harassment in the Bill.

The Government are trying at the eleventh hour to mitigate the harmful effects of the tort which suffers from the twin vices of vagueness and over-breadth. But their amendments will not remove the flaws from these flawed provisions.

I will give a few examples before I conclude. Suppose the Christian evangelical owner of a block of flats illuminates his property with Christmas lights around a model depicting Jesus in the crib in the manger, and he does so intentionally to spread the good news of the birth of Christ to his tenants so that they may abandon their Jewish or Muslim faith—or no faith at all. Or suppose that a secular Muslim property owner wishes to display in the entrance hall a copy of the artistic work that unfortunately had to be removed under pressure from Tate Modern showing the Koran in a broken condition and in need of repair. Suppose she does so with the intention of persuading fundamentalist Muslims to modernise their religious practices and utterances, like the editor of the women's magazine in Afghanistan who was recently given two years' imprisonment for challenging a belief that Muslims who convert to other religions should be stoned to death.

Such action in those two examples would constitute deliberate religious harassment and could give rise to legal proceedings for damages or a declaration or an injunction. That would seriously threaten free speech—the very reason which prompted the Home Office to exclude religious harassment from the provision of goods, services and facilities. The exemption for religious objects would be no defence.

Given the undefined nature of what constitutes "religion or belief", of "violating human dignity", or of "an offensive environment" in Clause 47(1), and the absence of any filter between claimant and defendant in proceedings brought under Clause 67, the inclusion of this tort would, we believe, encourage divisions within the community and litigation that was against the public interest.

I am sorry to have taken so long. I shall not speak again on this. But for all those reasons we on these Benches hope that the Government will accept our amendments and refer these issues to the Discrimination Law Review for full consideration.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative 5:00 pm, 9th November 2005

My Lords, I rise to speak to Amendments Nos. 12, 13, 14 and subsequent ones. My noble friend's Amendment No. 12 would of course provide a safeguard, but it does not go far enough. Narrowing down Clause 45 to actions that have the purpose of causing harassment does not eliminate the risk of catching all kinds of perfectly sensible behaviour.

What if a religious charity knew that some people thought that saying grace at meals was harassment? If it continued to say grace anyway a court could infer a harassment purpose on the basis of its prior knowledge of other people's sensitivities. No, these harassment provisions are just too risky whichever way you slice them. I acknowledge my noble friend's concern about this issue—she is a deeply committed person. We have had discussions on the matter. But in these circumstances I prefer the amendment of the noble Lord, Lord Lester, to delete harassment completely from the Bill. I have put my name to that amendment.

Turning to government Amendment No. 13, I am reluctant to appear ungrateful when the Government have clearly moved some way towards us on this issue. I know that the noble Baroness, Lady Scotland, has applied her considerable brain to this matter and has sought to offer something which meets the problem. I appreciate that but I am sad to say that this amendment is simply not enough.

Since Second Reading I have constantly raised concerns about how the religious harassment provisions could be used to attack our religious heritage and undermine liberty. Amendment No. 13 proves that my concerns were well founded. It now appears to be accepted that without this amendment a hospital could be sued for harassment over the placing of Bibles, a local council that holds a public meeting in a church could be sued over the presence of a cross on the wall, and, indeed, a Salvation Army hospice could be sued over a banner on a wall containing a biblical text.

My concerns about harassment have grown as the weeks have gone by. We live in a crazy world where some individuals are litigious. We live in a country where officialdom increasingly appears to be in thrall to political correctness. That is already having a damaging effect on our heritage. Last week we had front-page newspaper headlines about officials at Lambeth council trying to ban Christmas lights; Inland Revenue officials banning support for a Christian charity that sends Christmas presents to needy children; and museum staff deleting references to Christ from exhibits. We need to be sure that the Bill does nothing to encourage this kind of lunacy. Although the government amendment addresses religious objects, I am worried that it does nothing for free speech, as the noble Lord, Lord Lester, said.

On Report I tabled an amendment on behalf of the Church of England, which addressed not only religious objects but also manifestations of religion. It was intended to protect the saying of grace at meals and conversations about religion. The government amendment, to be fair, copies my amendment in some ways—and I am flattered—but it deletes references to manifestations of religion.

I understand that officials felt that this area was too difficult to address, but we cannot just leave the matter to the tender mercy of hostile litigants because it is too difficult for officials to address. We cannot ignore the plight of the Christian hospice that could be sued for saying grace, or the prison chaplain who is told he cannot initiate conversations about God with inmates, or the Inland Revenue employee who is banned from wishing his clients a merry Christmas.

I think that the whole issue of harassment is absolutely fraught and that we would be better off without it. That is why I cannot support the government amendment and instead support Amendment No. 14 and all the subsequent amendments in this grouping, to which I have added my name. I do so because I fear religious harassment could be as damaging to religious freedom and community cohesion as the religious hatred provisions that the Government want to introduce in another Bill.

Like the noble Lord, Lord Lester, perhaps I may briefly give the House some theoretical examples of the kind of mischief that could result from Clause 45. Let us imagine that a Home Office official gives a talk on community relations. Perhaps he talks about the risks posed by certain religious cults. If one of those present is a member of such a cult, an action could be launched claiming that the official created a hostile environment. What about a GP's waiting room where there are posters on the wall—and I have seen these—from a Government agency advertising a telephone helpline for members of ethnic minorities who are being coerced into forced marriages? If a woman comes in who believes, as a matter of faith, in arranged marriages, could she lodge a claim that the poster created a hostile environment?

What about the case of a pagan who outwardly says he is a pagan and is in gaol for a paedophile offence? The chaplain criticises the occult and warns prisoners to have nothing to do with it. The pagan could claim harassment; he could seek an injunction. Does this case sound ridiculous? These are the facts of a real case, brought in Australia under religious vilification legislation. It did not succeed under Australian law, but it illustrates the kind of case that could be brought.

We are not legislating in a vacuum. We are legislating in a climate where there are already some who view the equality agenda as a pretext for attacks on faith. I quote from last Sunday's Observer:

"A local authority is to pull the plug on its funding for festive lights because Christmas does not fit in with its 'core values of equality and diversity'. Waveney District Council, based in Lowestoft, Suffolk, said that because Christmas focuses on the Christian faith, it had decided its 'equality and diversity' commitments were not being met".

This is ludicrous.

Sadly, even the Home Office itself is making headlines on this issue. In one of yesterday's papers it was revealed that Home Office officials are threatening to withdraw funding from a memorial carol service for the victims of crime because it is too Christian. It suggested holding the service at a secular venue. This is precisely the kind of over-sensitivity that this harassment provision will foster. Removal of the provision would remove a considerable source of uncertainty and, indeed, anxiety from the Bill. I do hope for great support for Amendment No. 14 in the Division Lobby.

Photo of Lord Waddington Lord Waddington Conservative

My Lords, two amendments in this group are directed towards mitigating the worst effects of Clause 45. I refer to Amendment No. 12, to which my noble friend spoke at the beginning of this debate, and government Amendment No. 13. So long as Clause 45 stands, it will remain all too easy for public authorities to ban religious activity on the pretext that such activity could be found to have the purpose of violating somebody's dignity or creating an offensive environment for him. So I support the amendment, which the noble Lord, Lord Lester, is going to move, to delete Clause 45 and I am afraid that I cannot support my noble friend on Amendment No. 12 .

I want to make a general point. Of course, one should be sensitive to other people's feelings, but I think society has some reason to be worried about the gross and disproportionate way some people react to real and imagined slights and take offence at views expressed by others. It would be a great pity if by changes in the law we were to give encouragement to the over-sensitive to rush to the courts to correct real and imagined grievances. But the real worry, as many noble Lords have said in previous debates, is not that people will rush to the courts to bring actions for religious harassment; it is that public authorities will play safe and restrict the right of Christians to practise and demonstrate their faith for fear of finding themselves on the wrong side of the law.

To that end, they may put a stop to any manifestation of the Christian faith in public buildings by, for instance, cutting funding to Christian welfare charities because they say grace before meals. One has to look only at the circumstances referred to by my noble friends—the reluctance of certain authorities to celebrate Christmas and all the nonsense of the Home Office apparently threatening to withdraw funding for an annual memorial service at St Martin-in-the-Fields for the victims of crime—to realise that the fears expressed by Christian bodies are not fanciful. They are real.

We are being dangerously complacent if we imagine that if Clause 45 stands we will not find public authorities banning Bibles from hospitals, crosses from cemeteries and crematoria, and chaplains from prisons. Amendment No. 13 does something to protect the display of crosses and Bibles. No government amendment does anything to protect religious debate—in short, to protect free speech.

I fear that under existing law the pendulum has swung dangerously far against free speech. I do not believe that when the Public Order Act was passed in 1986—I was in government at the time—anyone thought that that Act would be used to punish a minister of religion for preaching against the commission of homosexual acts. Yet that happened in Bournemouth a couple of years ago. The minister preaching against homosexual acts was assaulted by a group of young men—claiming no doubt that their dignity had been violated—but they were not even cautioned. It was the minister of religion who was punished.

Personally, I think that that prosecution was outrageous, but that is not my point. My point is that there are already plenty of weapons in the hands of those who wish to suppress free speech and already too many opportunities for those who want to see the free expression of religious views curtailed. I do not want to add to their armament. Most people can see the sense of legislation to prevent discrimination—almost everyone does. Legislation to stop people being offended is a very different kettle of fish.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I have put my name to this group of amendments mainly because, during the passage of this Bill, I have spoken from time to time about harassment. It is repugnant to most people that anyone should be authorised in any way to harass anyone else. But I come to this issue from a different angle from that voiced by noble Lords on the other side of the Chamber. I come at it from the standpoint of someone who is secular and a member of the Humanist Association. I do so because, while I support wholeheartedly the right of religious people to practise their religion and to proselytise, I do not believe that they have a right to enforce their beliefs on people who do not share them. Neither do they have a right to impose their way of life on people who do not share their beliefs.

As the Bill stands, in certain aspects, it could have that effect. Certainly, the Humanist Association thinks that it could, and it is particularly concerned about the effect of Clause 50(3). It says that it understands that the subsection is intended to protect the religious character of faith schools from complaints by parents of other religions or of none. Nevertheless, the wording will exempt not only legitimate religious activities of faith schools but the type of conduct by teachers towards pupils that could involve mocking or condemning their conscientious beliefs because such pupils do not share the school's beliefs. The association believes that the rights of the school must be balanced against the rights of the child.

I share that view, which is different from that expressed by the noble Lord, Lord Waddington, and the noble Baroness, Lady O'Cathain. I put my name to the amendments because I want to protect the right of those who do not have religion not to be harassed.

Photo of The Bishop of Newcastle The Bishop of Newcastle Bishop 5:15 pm, 9th November 2005

My Lords, we on these Benches have similar concerns to those expressed by the noble Lord, Lord Lester, and the noble Baroness, Lady O'Cathain, especially about Clause 45 on harassment.

The concept is uncertain in its scope. One of the anxieties is that it may enable people, both of faith and of none, to take advantage of the provisions to make inappropriate claims of harassment. The provision is so widely drawn. It refers to,

"creating an intimidating, hostile, degrading, humiliating or offensive environment", and "violating" someone's "dignity". That is broad and uncertain and the parameters are far from clear.

We have considerable sympathy with the analysis of the noble Lord, Lord Lester, and we are concerned that such a provision, wide and uncertain as it is, could be used to strike at religious organisations and their practices from outside the faith communities. They could also be used to encourage differences between them.

While it is true that someone's perception that he is the subject of harassment is not enough to found a successful claim, there is always the test of reasonableness. None the less, the potential for claims to be made against religious organisations remains. The encouragement of litigation in that way cannot be in the public interest. While we strongly support the idea that no one should ever be harassed on grounds of religion or belief, which I tried to say clearly in Committee, we still find this part of the Bill unsatisfactory, and we are worried that it could do more harm than good.

I find myself in something of a dilemma. If the harassment provisions remain in the Bill, we wish them to take a form that gives as little scope as possible for bringing claims of harassment in relation to expressions of religious belief. We believe that the government amendment helps and provides some assistance, and we welcome it to that extent. If Amendment No. 14 is passed tonight and if Clause 45 is then reinstated in another place, we would want the government amendment to be along the same lines, and extended if possible, in the final form of the Bill.

Photo of Earl Ferrers Earl Ferrers Conservative

My Lords, I am also concerned about the question of harassment. As the right reverend Prelate said, it is wrong that people should be harassed in any way. My noble friend Lady O'Cathain referred to this crazy world where individuals have become litigious. That is so, and I fear that we shall become more litigious, especially if we in Parliament try to account for every detail. Legislating for every eventuality and nicety means that every time a criterion is put down, we are inviting people to agree or disagree, and then to litigate, or we frighten people from doing what they have always done in case somebody might litigate against them.

My noble friend Lord Waddington was quite right when he said that the outcome of this Bill would not be that people would be rushing to take others to court for what they have done, but that the local authorities would take action. Reference has been made to Christmas lights being banned and called winter lights and to Christmas cards that say "Season's Greetings" instead of "Happy Christmas" for fear of prosecution.

People ought not to be frightened of doing something in case Big Brother gets at them. I can give noble Lords my thoughts on this matter only in a general sphere. Let us assume that your Lordships consider the general principle of the Bill, that Ministers give worthy assurances that things will be all right and that the Bill goes through. But once the Bill becomes law and officials look at what the law says, they will forget what Ministers have said and think, "Goodness, we've got to take this action because if we don't, somebody will say that we are not doing what we should have done according to the law".

Perhaps I may give noble Lords one example which occurred to me only this past week. I received a letter from a local authority. The letterhead included the kind of thing that we are used to seeing nowadays; for example, the Metropolitan Police always has some whacky saying at the bottom of its letters such as "Serving London" or "Creating a safer London". It is completely unnecessary, but that is what it does. The letter in question had come from Norfolk County Council and I think the words in this case were "Serving the Community"; in other words, doing all the things that government and people want and being non-frightening, understanding and conciliatory. But the top right-hand corner of the letter said: "Farm Enforcement Team". That has all the flavour of the jackboot. There is not much community service there. It is dictatorial and it is frightening.

That is what happens. If you go ahead putting lovely ideas into Bills, and trying to dot every "i" and cross every "t", you will make enforcement a matter of considerable concern. My fear in general is that by trying to cater for every eventuality, we are storing up trouble for the future.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, like the noble Baroness, Lady Turner of Camden, I am a secularist and I see great dangers in this clause. For example, somebody might call me a heretic or an infidel, and I might very well take grave exception to that. It is very dangerous to be called a heretic or an infidel because, as a heretic, you can burn and, as an infidel, you can be stoned to death. One could therefore very easily take exception to being called a heretic or an infidel. One does not have to be of religious faith to be offended. As other noble Lords have pointed out, we are reaching an absurd situation where Christians are being penalised because they want to celebrate a Christian festival and those festivals are being put aside because of some perception that other people of a different faith might be offended.

That is completely absurd. I will give one more example, which is that is of a fire officer going to a fire station and insisting that the cross of St George should be removed in case that offended Muslims. We really are reaching an absurd situation, and it seems to me that this clause, in particular the phrase "or effect", will exacerbate the position rather than provide proper equality between people and religions.

Another thing about it which worries me is that the people who are often alleged to be offended—it generally happens that it is people of the Muslim faith—are not offended. I am afraid that it is often white, so-called liberals who impose these restrictions, not the Muslims who might be affected. But the effect of that, when it comes through in the newspapers, is that it is the Muslims who are objecting—and not that is their white, Christian compatriots who are doing this. That, in turn, leads to racial difficulties between people, and, indeed, to racial hatred. It is exactly what the Bill is supposed to eradicate.

I really want to support both amendments, but the better one is probably that moved by the noble Lord, Lord Lester. The matter really needs to be looked at very seriously and the noble Lord, along with other Members of your Lordships' House, has obviously given it considerable attention. We should be grateful to him for that. I hope that if the Minister takes no notice of what I say—and she never does—that she will, at least, take notice of the distinguished contributions made this afternoon, in particular by the noble Lord, Lord Lester, but by other noble Lords and Baronesses as well.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson in the Lords, Scotland, Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Cabinet Office

My Lords, this is my first intervention in the debate. I have been interested to consider the circumstances in which the Government's proposed new offence might be helpful. Starting from scratch, I am bound to say that I do not think it would be helpful in the kind of situation where it seems that this allegation might be most commonly made. That is where there are two communities living side by side, holding different religious views, and where the expression of their normal belief might be regarded as provocative to the other community.

I have thought back to the case of my late father, who was indeed a religious man. He ended up by being Lord High Commissioner to the General Assembly of the Church of Scotland, which was I suppose some recognition of that. He lived in a terraced house in Glasgow, which happened to be next door to a representative of Toc H—an organisation which I have not heard of recently—who was a descendant of Tubby Clayton's exercises. I remember distinctly when that organisation next door was wont to sing hymns loudly on several nights of the week. Whatever one may have thought of those hymns they became, in the mind of my father, something of a nuisance. It was a residential street, and when someone was just about to entertain some guests they would hear:

"Yield not to temptation for yielding is sin".

That might have been regarded as mildly irritating or even possibly provocative when it was repeated. So my father, having consulted a number of other neighbours who felt exactly the same way as he did—that this was a tiresome intrusion and almost too offensive—decided to retaliate. He played on his large gramophone a record of Mae West singing, as the Toc H followers arrived, "I wanna be evil". There was a suit for an accommodation. If either my father or the representative of Toc H had been dragged up on a charge of harassment, it would have been a preposterous state of affairs, and I do not believe that what the Government have in mind will alleviate situations of that kind.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative 5:30 pm, 9th November 2005

My Lords, I thoroughly agree with what the noble Lord, Lord Lester, said. It is interesting that Clause 52 of the Bill says:

"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment".

Then there are one or two exceptions, one of which, in subsection (4)(d), is,

"the making of an instrument by a Minister of the Crown under an enactment".

It seems very odd, if the Government are content with the definitions of discrimination or harassment as being in respect of conduct which is undesirable, that it should be perfectly all right for a Minister of the Crown acting under an enactment to do just that. That seems a contradictory stance.

Needless to say, that is not my main difficulty—my main difficulty is the extreme vagueness of the provision. The Bill talks about "violating" a person's "dignity". What does that mean? I find it very difficult to see precise boundaries for that—but that is just one example. The whole clause is of that character, and as far as I am concerned the only thing to do is to omit the clause and leave it to be reviewed by the commission, which is engaged in a comparable activity.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, for all the reasons that have been given, I would like the clause to be removed from the Bill, but I should like to raise a procedural matter. I understand from the Clerks that there is no reason at all why the House should not alter the clause with Amendment No. 12 and then leave it out; or accept the Government's amendment, which certainly ameliorates the clause, and then leave the clause out if the House so wishes. This is very important, and I hope that the Minister can confirm that that is correct on the procedural point. Should the House fail to remove the clause, it would be very good to ameliorate it. I hope that there is no misunderstanding about that, and that I am right in what I am saying, as I did ask and thought I understood the answer. Perhaps we could have it confirmed by the Minister.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, I am a latecomer to this Bill, because it had its Second Reading before I was introduced. However, when you come to analyse it, you find that it makes a deep-seated attack on freedom of speech and on freedom of religion. We fought over the centuries for freedom of religion. We did not have it in the 17th century; it was not until the 1820s that we got Catholic emancipation and it was not until well into the 19th century that we got religious freedom. Now we are making a move through this Bill—not deliberately, but this will be the effect—of actually restricting religious freedom very tightly and in very remarkable ways.

Under this Bill, John Wesley would have been prevented from preaching in most open-air areas. Biggleswade marketplace or the Marlowes in Hemel Hempstead are places where people go and speak and express their opinions, and are owned by the public authorities. There is a serious danger that people might be restricted in what they are seeking to do. People set out their stalls for different religions—principally Christian religions, but they might well be Muslim religions. As many noble Lords have said, not only the possibility of prosecution is at issue; it is the much wider risk of what public officials will believe that it is their duty to do to restrict free speech and free activity.

I praise my noble friend Lady Miller of Hendon because she has made the most constructive effort to improve this Bill by removing the words "or effect". There is no doubt that removing those words would represent a significant advance, because at least that would bring the Bill closer to requiring deliberate intent. But having listened to the speech of the noble Lord, Lord Lester, and others, including my noble and learned friend Lord Mackay, one has to wonder whether removing those words would go far enough, because purpose is not quite of the same nature as intent. After all, it is an essential of freedom of religion that you preach your religion with the purpose of saving the soul of another person. You must be entitled to do that in a free society, whether you are a Muslim, a Christian, a Sikh or a Jew, or of any other religion—or, indeed, a humanist or secularist—because you profoundly believe that to be the truth and that you will improve the world and the lot of your fellow men and women if you do that.

I shall say just one word about the sheer importance of freedom of speech. One cannot believe that the Government have lost sight of it. On "Thought for the Day" there is a regular Muslim speaker, and there is Indarjit Singh of the Sikh Messenger—and there you find enormous wisdom expressed. We have reached a very dangerous situation, in which we have what my noble and learned friend Lord Mackay rightly referred to as something like "distorted religions" or mistaken ideas of religions—probably referring to the Muslim religion. Let us suppose that there is a publicly owned block of flats in north London and that some of the Muslims who speak there wish to hold a meeting in which they wish to say, "We must uphold our faith but we must be careful of distortion". Will they be allowed to hold that, when they will be criticising fellow Muslims of a different type of that faith, just as we Christians sometimes criticise each other for different approaches to our own faith? They may be doing it in ways that would transgress this Bill.

I believe that this part of the Bill, and this clause, present very grave dangers. If the House is moved to support the amendment tabled by my noble friend Lady Miller, I shall vote for it, and if we move on to delete the clause altogether, I shall vote for that.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I have listened carefully to all the comments made by noble Lords on all sides of the House. I can tell the noble Lord, Lord Stoddart, that many things have been said of me but very rarely have I heard it said that I do not listen and respond. If that is his view, I must tell him that I very much regret it.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

My Lords, I did not make that as a blanket accusation—I merely said that she never listens to me.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, the noble Lord is quite wrong. I always listen to him because I have to answer the points that he makes. However, it is true that I rarely have the joy of agreeing with him—but there was one occasion that stands for ever in my mind, when the two of us were at one, and I shall never forget it.

We are faced with a very interesting position. I first thank the noble Baroness, Lady Miller, because she makes it plain that she supports the purpose behind Clause 45 but has trouble with two words—"or effect". The noble Lord, Lord Lester, says this is unripe time—that the debate we need to have should more accurately and properly be carried out in the much-anticipated discrimination law review. The noble Baroness, Lady O'Cathain, says that this part of the Bill should not be there at all. So there are three different stances, and other noble Lords and the right reverend Prelate have made variations on those themes.

For the purposes of clarity, I make it plain that what we are dealing with in this part of the Bill is how harassment will impinge on the way public services are provided. That is the context in which we speak. I shall start, although I appreciate it may take a little time, by dealing with the proper concerns raised by the noble Baroness, Lady Miller. I accept her passion about the improprieties of "or effect", which she maintains should be removed, not just from the provisions that relate to Clause 45, but also from all other parts of legislation where they appear.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I was making the point that if the only way we can delete this is because it is written in stone, we should get it out of stone so we can do what is right with this Bill.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I understand that. Let us look at why the provision is there. It does have, if I may respectfully say so, a purpose. The amendment would remove it. As I have made plain before, those words are used in other key pieces of discrimination legislation. It is there in the Race Relations Act 1976 and the Employment Equality (Religion or Belief) Regulations 2003 without causing problems in those areas. It is a principle of discrimination law that you need to show that the actions of a person were intended to discriminate or harass. That is clear.

For example, if the police were to adopt a policy that led to discrimination or harassment of Asians, it would not matter that they did not intend that to be the result. What is important is that their actions have in fact led to discrimination or harassment. The Government think the situation should be the same in the case of discrimination on the grounds of religion or belief. It should not be acceptable, for example, if the Prison Service were to adopt a policy that created an offensive environment for Muslims, that it could simply claim that that was not its intention.

It is also important to bear in mind that one has to look at not only Clause 45(1), but also Clause 45(3). That makes it clear that:

"Action by A shall be regarded as having the effect described in subsection (1)(a) or (b) only"—

I emphasise "only"—

"if it should reasonably be regarded as having that effect having regard to—

(a) B's perception, and

(b) all the other circumstances".

So when we consider the concern that has been expressed about a capricious or irrational situation, I respectfully suggest that Clause 45(3) deals with that concern.

We have brought forward our own amendment to the harassment clause, which we will debate further in a moment. We believe this goes a long way towards addressing the concerns the noble Baroness had—as did others, such as the noble Baroness, Lady O'Cathain—about accidental harassment or something that was not intended. The amendment centres on religious material or articles, but does not include religious practices. This is because religious practice is a very wide concept, and to say that a religious practice could never constitute harassment unless that was the intended effect is too much.

In most cases, if a person receiving a public service felt harassed by religious activity, the solution would lie in simple practical measures, like making it possible to opt out of that practice in some way by doing something different so they did not feel so negatively about it. That is what the normal remedy would be, and what we believe would actually happen in most circumstances when dealing with people providing a public service. However, we recognised that it may not be so easy to adapt a physical environment, particularly where there are many different uses, perhaps including worship. It should be possible to adapt religious behaviour, though—even religious practice—in the context of the delivery of a public function. There has been a lot of debate in the House this afternoon that does not go to the public function but to the general expression of what people feel, but we have to concentrate on the fact that we are dealing with the exercise of public function.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 5:45 pm, 9th November 2005

My Lords, I am sorry to interrupt the Minister, and I am grateful to her for allowing me to do so. She keeps referring to public function, but, as she knows, this refers not only to public function but to housing and private education.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, it refers to housing. Noble Lords will know that the whole issue of what public functions are and what other issues are involved was dealt with when we talked about them earlier. It seemed to me that part of the discussion was not in terms of exercising a public function or providing accommodation, or those other matters. It was put in a very general way. It is important that we concentrate on what we are talking about in this part of the Bill.

While I am on harassment and the nature of this part, there is a difficulty regarding what has been said about what defines and does not define a religion. I hope I will be able to say a little more about that in a short while.

Who could say that it is right to harass on the grounds of someone's religion or belief in areas such as the provision of services by prison officers to those imprisoned, or immigration officers, or other dischargers of public functions? To say we will not act against such behaviour now in a Bill that—with considerable Cross-Bench support—tackles discrimination on grounds of religion or belief would send the wrong message about what is and is not acceptable, particularly to those communities that are most likely to suffer from this form of discrimination.

The noble Lord, Lord Lester, suggested on Report that the Protection from Harassment Act 1997 provides sufficient cover in respect of harassment so that a separate provision in discrimination law is not necessary. I make it plain that we do not agree. The 1997 Act essentially covers behaviour that causes alarm and distress, that is unacceptable between any two individuals in our society, and that may be thought to be the precursor of violence. The use of the Act may have broadened from stalkers, its initial target, but does not cover the same range of behaviour as discrimination law. I understand what the noble Lord, Lord Waddington, has to say about the fact that it was never intended so to do, but it has developed, although it has not quite developed this far.

In Part 2 we are concerned to protect individuals due to the specific relationship between them and a harasser because the harasser is providing a public service or other service that they need, or is involved in providing them with education or vocational training, or is their landlord, or is providing a roof over their head. We think it right to consider more deeply the position between individuals and service providers in the area of goods, services and facilities where there is a less obvious imbalance, and where the recipient or the customer frequently has more choice in how they are obtained. It is for that reason that we have put those matters into the discrimination review.

We recognise that concerns remain around this issue—this debate itself demonstrates that—and that there are particular concerns to ensure that faith groups providing public functions do not by accident find themselves subject to a claim. We have said that we are willing to discuss the details of exemptions in all the areas affected. We have laid a further amendment to that end today, which I have already discussed. We will continue to consider these issues as these proposals are further discussed and implemented. But to remove the prohibition on harassment altogether from the Bill now would in our view fail those who may currently be suffering injustice in these areas.

If it passes into law, we will have no power other than by use of primary legislation to change the definition of harassment in this Bill but it is right that it should be reviewed across the piece in the discrimination law review rather than introducing a separate definition for this one strand at this point. In addition, we have a power to create new exceptions in the area of public functions or to vary the exemptions elsewhere in Part 2, if we do find that these provisions cause us unexpected problems. If some of the fears that have been expressed in this House prove to be correct, we have a vehicle with which to address them.

I turn to the amendment of the noble Lord, Lord Lester. I understand what he says about it. He asserts that we have misunderstood the definition of religion. I hope to clarify our definition. The noble Lord quite rightly referred to the House of Lords' decision in Mandla v Dowell Lee. In that judgment Lord Fraser said:

"For a group to constitute an ethnic group in the sense of the 1976 Act, it must, in my opinion, regard itself, and be regarded by others, as a distinct community by virtue of certain characteristics . . . The conditions which appear to me to be essential are these: (1) a long shared history, of which the group is conscious as distinguishing it from other groups, and the memory of which it keeps alive (2) a cultural tradition of its own, including family and social customs and manners, often but not necessarily associated with religious observance. In addition to those two essential characteristics the following characteristics are, in my opinion, relevant: (3) either a common geographical origin, or descent from a small number of common ancestors (4) a common language, not necessarily peculiar to the group (5) a common literature peculiar to the group (6) a common religion different from that of neighbouring groups or from the general community surrounding it . . . A group defined by reference to enough of these characteristics would be capable of including converts, for example, persons who marry into the group, and of excluding apostates. Provided a person who joins the group feels himself or herself to be a member of it".

That is why, using that definition, the Government believe it is right that an ethnic group is not defined by its religion but that it can in part be so defined. We believe that definition is helpful.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, I am grateful to the noble Baroness for her lecture on Mandla. However, she needs to read the judgments of the noble and learned Lord, Lord Slynn, and the others to which I referred which deal with the point that was not dealt with in Mandla; that is, whether Jews are covered under the Race Relations Act on the basis of ethnicity or religion. The law clearly states that they are covered on the basis of ethnicity. It was that point I was trying to deal with. The Mandla case does not deal with that as such at all.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, as the noble Lord will know, we are dealing not simply with the Jewish community but also with the Sikh community. Mandla dealt directly with the Sikh community and its definition. That definition sought to distinguish the kind of issues which can identify people as a group. That by no means undermines the fact that those two groups have a different history but it clearly uses the definition I mentioned, which we consider is a helpful definition.

I understand absolutely that the noble Lord would prefer this whole issue to be included in the discrimination review. However, we cannot accept that. If that were to be done, there would be no provision which referred to harassment in relation to this category, which is dealt with quite properly under Clause 45. It is simply not a satisfactory solution to say that these provisions can work. As regards the whole issue of discrimination law, the discrimination law review may well come up with a construct that is significantly different from that which we currently have in relation to a number of species of discrimination. The law that we have in each of these areas may change, and change significantly, once that review is complete. However, we have to deal with the situation until the conclusions of that review are issued. We seek to give appropriate protection to all those who may be significantly disadvantaged and discriminated against in relation to the way in which public services are given to them, and in relation to education and accommodation. All of those things are fundamental to the way in which people lead their lives. I respectfully suggest that it would be unjust not to deal with this wrong in a similar way to all the others.

I say with all the gentleness which I can muster that if one looks at the provisions which were mooted on behalf of those who are discriminated against on the ground of sexual orientation, and one compares those provisions with all the other provisions in this area, one sees that they are almost identical, and not significantly different from that which we wish to implement in relation to religious belief. The difference is that we have not extended the provision to goods and services for the reasons that we have given. Therefore, I invite noble Lords to think very seriously indeed before expunging—because that is what it would amount to—from the Bill an opportunity to prevent people being seriously disadvantaged and to give them better protection. I understand what the noble Baroness, Lady Miller, said in relation to those two words. However, I reassure her that those will be exactly the issues in relation to all the species of discrimination that the discrimination law review will consider. We will not have to wait very long for that.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, before the noble Baroness sits down, is it possible for her to answer my point about procedure?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, as I understand it, the amendments will be dealt with in order. I believe that the vote would be taken first on the amendment of the noble Baroness, Lady Miller. If that amendment were carried, I believe that the vote on the amendment of the noble Lord, Lord Lester, could still take place, but votes could not be taken on the other amendments as they would all fall away. That is my understanding. I am sure that someone will correct me if I have misunderstood the procedure.

Photo of Baroness Carnegy of Lour Baroness Carnegy of Lour Conservative

My Lords, could the vote on the amendment of the noble Lord, Lord Lester, take place if Amendment No. 12 were passed?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, that is right and I can see various people around the House nodding in agreement. However, the other amendments would fall away, because that part would no longer be there.

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet)

My Lords, I listened very carefully to the Minister with real regret—not just mild regret, but real, passionate regret—because I feel that the Government are making a great mistake. Having said that, I would like to thank my noble friend Lady Carnegy and my noble and learned friend Lord Lyell for the support that they gave to my amendment. But the hour is late and, despite the fact that I said I would definitely divide the House, the truth is that the Government are against me, the Liberals will not vote on my amendment at all, and if I delay the House even longer, I understand from the noble Lord, Lord Lester, that he would have great difficulty in keeping his troops for the next amendment.

I make those points because I feel very strongly about this issue. On the other hand, with those two words left there, I cannot possibly accept that Clause 45 should stay in the Bill. Under those circumstances I am pleased to agree with what the noble Lord has said to me and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

moved Amendment No. 13:

Page 27, line 19, at end insert—

"(5) Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)."

On Question, amendment agreed to.

On Question, Whether the said amendment (No. 14) shall be agreed to?

Their Lordships divided: Contents, 216; Not-Contents, 126

Division number 1 Private Parking: Ports and Trading Estates — Equality Bill [HL]

Aye: 214 Members of the House of Lords

No: 124 Members of the House of Lords

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Resolved in the affirmative, and amendment agreed to accordingly.

Clause 47 [Premises]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 6:15 pm, 9th November 2005

moved Amendments Nos. 15 and 16:

Page 28, line 39, leave out subsection (3).

Page 28, line 40, leave out subsection (4).

On Question, amendments agreed to.

Clause 49 [Educational establishments]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 17:

Page 29, line 41, leave out subsection (2).

On Question, amendment agreed to.

Clause 50 [Section 49: exceptions]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendments Nos. 18 and 19:

Page 31, line 1, leave out "or (2)(a)"

Page 31, line 7, leave out subsection (3).

On Question, amendments agreed to.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

had given notice of her intention to move Amendment No. 20:

Page 31, line 8, leave out from "above," to end of line 9 and insert "nothing shall be unlawful if done by reason of or on the grounds of the purpose of the establishment (including the purpose of providing education relating to or within the framework of a religion or belief, in accordance with decisions taken by persons responsible for the establishment as to how the precepts of the religion or belief should be manifested or promulgated in the establishment)."

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am just checking whether I can move the amendment. I think that since Amendment No. 19 has been agreed to, I shall not be able to move Amendments Nos. 20 and 21 because of pre-emption.

Photo of Baroness Lockwood Baroness Lockwood Labour

My Lords, is the noble Baroness not moving Amendment No. 20?

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, according to the brief, if Amendment No. 19 is agreed to, we cannot call Amendments Nos. 20 or 21 because of pre-emption. I think that is the correct procedure at this point, in which case we shall not move them.

[Amendment No. 20 not moved.]

[Amendment No. 21 not moved.]

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 22:

Page 31, line 11, leave out ", (2) or (3)" and insert "or (2)"

On Question, amendment agreed to.

Clause 51 [Local education authorities and education authorities]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 23:

Page 31, line 35, leave out subsection (2).

On Question, amendment agreed to.

Clause 52 [Public authorities: general]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendments Nos. 24 to 28:

Page 32, line 20, leave out "or harassment"

Page 33, line 42, leave out from "ethos" to end of line 43.

Page 33, line 48, leave out from "ethos" to end of line 49.

Page 33, line 50, leave out from "institution" to end of line 51.

Page 34, line 2, leave out from "institutions" to end of line 3.

On Question, amendments agreed to.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

moved Amendment No. 29:

After Clause 52, insert the following new clause—

"MONITORING OF EXCEPTION IN RELATION TO IMMIGRATION CASES

(1) The Secretary of State shall appoint a person who is not a member of his staff to act as a monitor in relation to immigration cases.

(2) The person so appointed shall monitor in such manner as the Secretary of State may determine the operation of the exception in section 52(4)(f).

(3) The monitor shall make an annual report on the discharge of his functions to the Secretary of State.

(4) The Secretary of State shall lay a copy of any report made to him under subsection (3) before each House of Parliament.

(5) The Secretary of State shall pay to the monitor such fees and allowances (if any) as he may determine."

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, Amendment No. 29 refers to Clause 52, which deals with public authorities. The purpose of that clause is to ensure that in exercising their function public authorities do not do any act that constitutes discrimination or harassment. Subsection (4)(f) provides prohibition, but it does not apply to a decision taken in accordance with rules under Section 3(2) of the Immigration Act 1971. These grounds are clearly defined, and they apply mainly to refuse entry clearance or leave to enter the United Kingdom on the grounds that the exclusion is conducive to the public good. We agree with that.

The same applies to a decision to cancel leave to enter or remain in the United Kingdom. There are further powers, which include a decision to refuse an application to vary leave to enter or remain in the United Kingdom on the grounds that it is undesirable for a person to remain in the United Kingdom, or a decision to vary leave to enter or remain in the UK on the same grounds.

But we have introduced new grounds as well. Clause 52(4)(g) states:

"that a person holds an office or position in connection with a religion or belief or provides services in connection with their religion or belief . . . that a religion or belief is not to be treated in the same way as certain other religions or beliefs, or . . . that the exclusion from the United Kingdom of a person to whom paragraph (i) applies is conducive to the public good".

Those are some of the grounds that have been introduced, and on that basis, we felt that it was appropriate to have a system of monitoring. The amendment in my name and that of my noble friend Lord Lester deals with this matter.

I will spell out what we propose. In our amendment, we suggest that it is appropriate to have monitoring of exception in relation to the cases that I outlined, particularly on matters that relate to religious exception. We suggest the appointment of a person who is not a member of the Home Office staff to act as a monitor in relation to immigration cases. The purpose behind this amendment is to ensure that there is public confidence in the way that the system operates.

At Report, I mentioned that we were grateful to the Government for ensuring that the exceptions to immigration rules were limited. We tried to achieve the same aim during the passage of the Race Relations (Amendment) Act 2000. Unfortunately, despite our various efforts, we were not successful then. There can be mistrust, particularly in the way that rules apply on the basis of religion and belief. Proper monitoring would remove any suspicion and the independence of the monitor would ensure that the provisions of Clause 52 are properly applied.

Immigration officers have wide powers—in many cases the same powers as police officers. The police are subject to the Police and Criminal Evidence Act 1984. We believe that that if we need to safeguard both the way in which immigration rules are applied and the interests of individuals, the appointment of an independent monitor is important. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I regret to say that I have to resist this amendment in the same way that we resisted it on Report. I said we would continue to consider the matter and we have looked into it with some care. On balance, we do not feel that it is right to reproduce the arrangements in the Race Relations Act 1976, to which the noble Lord referred.

The exception that is now provided for immigration at Clause 52 is relatively narrow in comparison with that which is provided in Section 19D of the Race Relations Act 1976. The exception to the Race Relations Act potentially affects a large number of nationalities and a great many people: it may apply wherever there are objective grounds for believing that it is reasonable to subject people of different nationalities to different treatment for the purposes of immigration control. Such treatment must be authorised by a Minister and those authorisations are reported on by the Independent Race Monitor. A dozen or so are in force. In this case, a relatively small number of authorisations may affect a great many individual cases spanning a large number of nationalities.

The situation in the case of the exception provided in Part 2 of this Bill is different. The discretion to discriminate on grounds of public good is likely to be exercised with regard to individuals rather than groups, and is unlikely to be an everyday occurrence. A remedy for failure to exercise this power correctly is available either through appeal—if the conditions for appeal are satisfied—or through judicial review.

To the extent that the exception allows a determination that a particular religion is not to be treated in the same way as other religions—because it encourages children to renounce contact with their families, for example—leading to a refusal to grant recognition for the purpose of admission as a religious worker, then it is in any case not analogous with the power to authorise discrimination in respect of nationality.

I know that the way in which this suggestion was proposed is that it would be a relatively easy thing to do, that it would not take much time and that it would be an add-on, which could be easily accommodated. That view was carefully explored with those primarily responsible for discharging this matter. The view that was taken, for the reasons that I have just given, was that it was neither possible nor appropriate for us to accept the proposal because it would be far too burdensome. For those reasons, and for those that I have already given, I must resist Amendment No. 29.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, before the Minister sits down, will she explain something? Let us suppose that a Pakistani Muslim is refused entry under immigration control. We have a race monitor to see whether such a decision was taken on a race basis, but we know that race and religion are intertwined in this area. Why would it be impossible or onerous for the race monitor not to be able to give public confidence to Muslims, Pakistani Muslims and ethnic minorities generally, by at the same time monitoring the religious as well as the racial aspects? I cannot understand that. The proposal would not cost much money—the same person could perform both roles and we know that it is hard to disentangle religious and racial grounds. That is what I cannot understand from the Minister's answer.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I am grateful for the noble Lord's agreement that race and religion are difficult to disentangle. That is a contrary argument to the one that was made for the better part of this afternoon—that the two were easy to separate. That being the case, the view that has been taken is that there would have to be a different monitor for this as opposed to the other role and that the measure would be too bureaucratic and too difficult to deliver. I can assure the noble Lord that this matter was energetically pursued to see whether it would be possible to do what the noble Lord would like; especially bearing in mind that the noble Lord thought it would be simple and easy to achieve. For the reasons that I have given, the view was clearly taken that it would not be simple: it would be extremely bureaucratic and difficult and that when one looked at the consequences, it was not appropriate. That is the decision that the Government took. I can assure the noble Lord that the issue was fully explored.

Photo of Lord Dholakia Lord Dholakia Deputy Leader, House of Lords, Spokesperson in the Lords, Home Affairs

My Lords, I am grateful to the Minister for her explanation. I remind her that we raised this matter a long time ago and she made some genuine concessions. The powers of immigration are restricted. As my noble friend said, if I were a Muslim from Pakistan, I would certainly want to know whether I had been rejected on racial or religious grounds. It may be a few more years before we get such an amendment on to the statute book, but we will certainly keep trying. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 [Instructing or causing discrimination or harassment]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendments Nos. 30 to 34:

Page 36, line 2, leave out "or to unlawfully harass"

Page 36, line 5, leave out "or to unlawfully harass"

Page 36, line 7, leave out "or to unlawfully harass"

Page 36, line 9, leave out "or harassment"

Page 36, line 10, leave out "or harassment"

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, in moving these amendments, I apologise for the split infinitive. I beg to move.

On Question, amendments agreed to.

Clause 57 [Organisations relating to religion or belief]:

Photo of Baroness Whitaker Baroness Whitaker Labour

moved Amendment No. 35:

Page 37, line 19, leave out "imposed" and insert "reasonably justified"

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, in moving this amendment, I will also speak to Amendments Nos. 36 to 39 in my name and that of the noble Lord, Lord Marsh. They follow discussions with the British Humanist Association and I declare an interest as vice-president. I also very much appreciate the Minister's discussing the amendments with me. The essential point is that religious organisations, as defined in Clause 57 (1) and charities as defined in Clause 58 (1) may be carrying out options of a public nature—delivering services on behalf of local or national government or the national health service, for example. When they are thus acting as agents for public authorities, they should not be allowed to discriminate on religious grounds. We need to make it clear that they will not be so allowed.

Clause 52 (1) states that:

"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment", but Clauses 57 and 58 both state that "nothing in this Part" shall be held to restrict religious organisations and charities. The problem is, if a public function is being exercised by a body as defined in Clauses 57 and 58, will they be caught by Clause 52 (1)?

The question is complicated by the current controversy since the Leonard Cheshire case over precisely what a public authority is. What we need to be assured of is that Clause 52(1) would trump Clauses 57 and 58 in any future case. The amendments would achieve that.

Finally, consistently with this approach, the words "reasonably justified" should be substituted for "imposed" in Clauses 57, 58 and 59, because "imposed" is far too weak a trigger for exemptions from the new and welcome duties in the Bill. The proper test for licence to ban membership, ban the provision of goods, facilities and services, ban the use of premises, is surely the reasonable justification. I beg to move.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State (Criminal Justice and Offender Management), Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

My Lords, I rise to speak to Amendment No. 35, which has been moved so eloquently by my noble friend Lady Whitaker, and to Amendments Nos. 36, 37, 38 and 39. I hope my noble friend will understand that I cannot accept these amendments, which revisit territory explored in this House in our discussions on removing the word "expedient" from Clauses 57, 58 and 59. However, I hope that what I say may give her some modicum of comfort.

As I said on Report, the draftsman has given us a good set of words with the wording he provided—which this House then approved—which requires that there must be a causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend in Amendments Nos. 35, 37 and 39 would provide a test which would be less easy to apply. For that reason the wording provided by the draftsman is, in our respectful view, to be preferred.

Amendments Nos. 36 and 38 seek to prevent organisations and charities relating to religion or belief discriminating when providing a public function. I cannot accept these amendments. There will be occasions when a particular group has a specific need best met within the context of their own religion and when we might positively encourage an organisation to discriminate to ensure that need was met. An example might be a women's group catering specifically for the needs of Sikh or Muslim women, or a care home for Jewish people that received some public funding. These amendments would place too high a barrier in the way of service providers, who undertake valuable work, and for that reason we cannot accept them.

Clause 52(1) states:

"It is unlawful for a public authority exercising a function to do any act which constitutes discrimination or harassment".

I can assure my noble friend that that provision prevails in relation to those acts which are outside the exemption. For instance, although in many instances there will be materially different circumstances which would justify discrimination in public functions, these would be liable for challenge in ways that are provided by the clauses as we have them. To reduce the protection provided by the clauses would risk increasing the chilling effect. If they stepped outside the specific exception that we provided, those issues could be challenged.

My noble friend was concerned about bullying. What if someone was bullied in a school because they did not adhere to certain views? These provisions would not allow a school inappropriately to bully a child. It would be bound by the same rules against that sort of activity which apply now. It is the specific exemptions, and specific exemptions only, which would enable them to have advantage in that way.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, it is a pity that there is not one more stage to the Bill, so I would have a chance to study my noble friend's reassurance in Hansard before the Bill goes on its way. As I understand what she says, the courts would be likely to interpret the causes as they are in the way that I thought they would be after my amendments. On that basis, I suppose I ought to be content. I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 36 not moved.]

Clause 58 [Charities relating to religion or belief]:

[Amendments Nos. 37 and 38 not moved.]

Clause 59 [Faith schools, &c.]:

[Amendment No. 39 not moved.]

Clause 72 [Validity and revision of contracts]:

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 40:

Page 42, line 41, leave out "or harassment of,"

On Question, amendment agreed to.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

moved Amendment No. 41:

After Clause 80, insert the following new clause—

"PART 2A

DISCRIMINATION ON GROUNDS OF SEXUAL ORIENTATION

REGULATIONS

(1) The Secretary of State may by regulations make provision about discrimination or harassment on grounds of sexual orientation.

(2) In subsection (1) "sexual orientation" has the meaning given by section 35.

(3) The regulations may, in particular—

(a) make provision of a kind similar to Part 2 of this Act;

(b) define discrimination;

(c) define harassment;

(d) make provision for enforcement (which may, in particular, include provision—

(i) creating a criminal offence of a kind similar to, and with the same maximum penalties as, an offence created by an enactment relating to discrimination or equality;

(ii) about validity and revision of contracts;

(iii) about discriminatory advertisements;

(iv) about instructing or causing discrimination or harassment);

(e) provide for exceptions (whether or not of a kind similar to those provided for by Part 2 of this Act or any other enactment relating to discrimination or equality);

(f) make provision which applies generally or only in specified cases or circumstances;

(g) make different provision for different cases or circumstances;

(h) include incidental or consequential provision (which may include provision amending an enactment);

(i) include transitional provision.

(4) The regulations—

(a) shall be made by statutory instrument, and

(b) may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(5) In subsection (3)(h) "enactment" includes an enactment in or under an Act of the Scottish Parliament."

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 42:

Page 46, line 40, at end insert "(but nothing in that Table permits anything which is prohibited by virtue of any Community law relating to discrimination)"

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I said on Report that I was aware of the Equal Opportunity Commission's concerns about Clause 81. I was grateful to my noble friend Lady Lockwood for raising this question. That clause brings in a prohibition on sex discrimination and harassment in the exercise of public functions, through inserting a new section in the Sex Discrimination Act 1975. I take the opportunity to address one of the concerns raised, which can be dealt with appropriately in this Bill. This concerns the compatibility of the exceptions to the new provision in the Sex Discrimination Act 1975 with the gender directive, which will need to be implemented by December 2007. These exceptions are set out in a table of exceptions in Clause 81.

The EOC is concerned that the implementation of the gender directive may require changes to the Sex Discrimination Act 1975 soon after the provisions of this Bill are brought into force. We have looked carefully at the points raised and the requirements of the gender directive, and we are sensitive to the need to minimise the disruption arising from changes required by Community law and to the need for clarity in advance.

While there is in our view no conflict between the public functions provisions of this Bill and the requirements of the gender directive, we are anxious not to create in this Bill provisions that will conflict with the requirements of the gender directive or any other existing or future community law. Consequently, we propose Amendment No. 42 to make it clear that nothing in the table will permit anything which is prohibited by any Community law relating to discrimination. We agree we should make this clear beyond doubt.

The EOC has other concerns relating to these exceptions but, as I indicated on Report, I believe the broader question of definitions and exemptions in the Sex Discrimination Act 1975 needs to be looked at more deeply in the discrimination law review. The review will provide full opportunities for the deep and detailed consideration that is needed. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities

My Lords, since the noble Baroness, Lady Lockwood, is not a free woman but is sitting on the Woolsack, I hope that she will not mind my speaking in her name and saying that, if she were free, she would say what I am about to say. We are grateful to the Government for having tabled and moved Amendment No. 42. As the Minister said, it ensures that the very broad exception in the table must be read subject to Community law relating to discrimination. It is put very neatly in that way. It means that, for example, the proportionality test in the gender directive will have to apply.

As the EOC has indicated, there are other, wider structural problems with dovetailing between this Bill and the Sex Discrimination Act 1975. However, it would be beyond the scope of this Bill, as the Minister has said, to seek to deal with those sophisticated and complicated matters now. They will be dealt with, as I understand it, by the discrimination law review, which is entirely sensible.

Finally, since this is probably my last opportunity to say this, I want to pay tribute to the Minister, without whom it would have been impossible to make the Bill into what it now is, that is, a Bill of which we should all be proud when we send it to the other place. I know that she has had a difficult time because she has had to deal with so many different departments and issues. It has been an enormous pleasure to me to work with her, and what she has done is quite remarkable.

On Question, amendment agreed to.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 43:

Page 55, line 35, leave out subsection (3) and insert—

"(3) Paragraphs 36 to 38 and 41 to 55 of Schedule 3 (which amend the Estate Agents Act 1979 (c. 38) and the Disability Discrimination Act 1995 (c. 50)), together with corresponding entries in Schedule 4, shall not extend to Northern Ireland."

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I feel I should begin by saying, "Gosh".

This is a minor technical amendment whose purpose is to tidy up some technical referencing in the Bill. Essentially, it clarifies that the consequential amendments to the Disability Discrimination Act and the Estate Agents Act contained in Schedules 3 and 4 do not apply in Northern Ireland. The amendments will ensure that the Northern Ireland-specific changes made to the Disability Discrimination Act and the Estate Agents Act as they came into force are thereby not undermined. I beg to move.

On Question, amendment agreed to.

Schedule 1 [The Commission: Constitution, &c.]:

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

moved Amendment No. 44:

Page 67, line 7, at end insert—

"(2) The Transition Commissioner nominated by the chairman of the Disability Rights Commission may not be a member of the Disability Committee."

On Question, amendment agreed to.

In the Title:

Photo of Lord Alli Lord Alli Labour

moved Amendment No. 45:

Line 4, after "belief;" insert "to enable provision to be made about discrimination on grounds of sexual orientation;"

On Question, amendment agreed to.

An amendment (privilege) made.

Photo of Baroness Ashton of Upholland Baroness Ashton of Upholland Parliamentary Under-Secretary, Department for Constitutional Affairs, Parliamentary Under-Secretary (Department for Constitutional Affairs)

My Lords, I beg to move that this Bill do now pass.

Moved, that the Bill do now pass.—(Baroness Ashton of Upholland.)

On Question, Bill passed, and sent to the Commons.