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.