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.