Equality Bill — Committee (Continued) (2nd Day)

– in the House of Lords at 7:50 pm on 13 January 2010.

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Clause 21 : Failure to comply with duty

Amendments 45C and 45D not moved.

Clause 21 agreed.

Clause 22 : Regulations

Amendment 45E not moved.

Clause 22 agreed.

Clauses 23 and 24 agreed.

Clause 25 : References to particular strands of discrimination

Amendments 46 to 50 not moved.

Clause 25 agreed.

Clause 26 : Harassment

Amendment 51

Moved by Lord Ouseley

51: Clause 26, page 13, line 42, leave out "gender reassignment or sex" and insert "a relevant protected characteristic"

Photo of Lord Ouseley Lord Ouseley Crossbench 8:22, 13 January 2010

My Lords, in moving the amendment, I shall speak also to Amendment 106, which is coupled with it. The amendment makes it a form of harassment for person A to treat another person B less favourably because B is either rejected or submitted to sexual harassment, or harassment related to gender reassignment or sex.

The amendment would simply extend the protection to apply if B is rejected or submitted to harassment related to any relevant protected characteristic, not limited to gender reassignment or sex. I shall provide an appropriate example of harassment from which the amendment would ensure protection. A Bangladeshi worker is subjected to racial harassment by his fellow workers. He finds their remarks and gestures demeaning and offensive. He does his best to ignore what he hears and sees in order not to put his job at risk. His line manager is aware of this campaign of harassment, but takes no action to prevent it. Instead, when the Bangladeshi worker persistently rejects the taunts and insults, his line manager excludes him from the overtime rota.

Under the Bill as drafted, that Bangladeshi worker would not be able to complain of less favourable treatment by the line manager. The Bill limits such protection to cases in which the harassment is related to sex or gender reassignment only. No explanation has been offered as to why other characteristics-for example, race, disability or sexual orientation-are not equally protected. The amendment would enable that protection.

With regard to harassment in schools, Amendment 106 to Clause 85 would place the same obligation on school governors, local authorities, education authorities and proprietors of independent schools in relation to their pupils as the Bill places on employers in relation to their employees. There is widespread concern about harassment and bullying in schools. In many instances, this is done by other pupils, not by the school or its staff. The purpose of this amendment is to make the body responsible for the school liable for harassment of pupils, regardless of who the harasser is, including other pupils.

Clause 85 already prohibits harassment of pupils by the responsible body-the governing body, the local authority, the education authority or the proprietor of an independent school. This would include harassment by any employee of the responsible body. While the general responsibility of governors and local education authorities for the health and safety of pupils under common law should involve protecting pupils from the harm of harassment by any person, it is not clear whether this would cover pupil-to-pupil harassment, which is recognised as a problem in many schools. There are frequent tragic reports of school pupils self-harming or committing suicide because of harassment and bullying by other pupils.

Amendment 106 would provide a clear statutory obligation to prevent harassment of pupils by any person. Therefore, the purpose of this amendment is to give the body responsible for a school an obligation, in relation to harassment of pupils, equivalent to that which the body already has as an employer in relation to harassment of its employees.

Under Clause 40(2) teachers and other staff are already protected against third-party harassment, including harassment by pupils. My amendment reflects the language in Clause 40, which places a liability on employers for third-party harassment of their employees. I do not agree with the need for the individual to have been harassed on two previous occasions before the responsible body has liability, as set out in Clause 40-although Amendment 62 of the noble Lord, Lord Lester, which I welcome, would modify that. The main purpose of Amendment 106 is to bring schools into alignment with workplaces in terms of protection against third-party harassment. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I will also speak to the various amendments in the group in my name-Amendments 56A and 56B, Amendments 61 to 63, and Amendments 106ZA and 106ZB. They have been grouped together and this is a complicated and difficult subject. To speed the passage of the Bill, I will deal with it briefly-I hope-and in a way that enables the Minister to go on the record with a full explanation of these matters.

I preface that with something on harassment as defined in Clause 26. I have already made the point but will make it a bit clearer. During the passage of the Equality Act, when the noble Baroness, Lady Ashton of Upholland, had responsibility for it, we had a problem in extending the definition of harassment as it is now in Clause 26 to goods and services, and in particular to housing and education. The problem was in a sense that raised by the right reverend Prelate about free speech and the interaction between religion and sexuality, for example, and one religion and another.

The basic problem, taking it stage by stage, was when the Government implemented the EU equality regulations. These would have allowed the Government in Clause 26(1)(b)(i) to put in the word "and"-that is, to have made the wrong of harassment only where you both violate a person's dignity and create,

"an intimidating, hostile, degrading, humiliating or offensive environment", for the alleged victim. However, the Government instead put in the word "or" to make it stronger than EU law strictly required. Having done that, it is part of what is already there. Some would say that what I am now going to say would represent regression.

The problem in the Equality Act is that there is no filter to prevent an individual bringing proceedings in an employment tribunal or county court for harassment. There is no body there like the commission to say, "That is ridiculous". Somebody can bring a claim in employment or beyond saying that their dignity has been violated and that is enough. It was evident to the Government at the time that this created real problems for religion and sexuality, the churches and free speech. One example in our minds was, say, a Christian landlord who wanted Jews to convert and who had a poster in the hall that said "Belong to the Jews for Jesus" organisation, which would offend the Jewish tenant. The Jewish tenant could bring a claim for violating dignity. There were various other examples of that kind, where thin-skinned people whose dignity was being violated could bring a claim. The Government wisely decided to take out the notion of harassment as far as it affected religion or sexual orientation beyond employment for another day. I hope I am accurately summarising the history.

It is still unfortunate that we are wedded to "or" instead of "and" because I worry that frivolous or crazy claims could be brought under harassment. Even if they fail-as they probably would-they would bring the law into disrepute. I am keen to discourage stupid cases because the bringing of the case is almost as bad as the winning or losing of it. I wish one could replace "or" with "and". It would be more reasonable if the claimant had to show both that dignity was violated and that it created an offence of such-and-such an environment. It would certainly not be inconsistent with EU employment equality law.

That is all tedious background but it is important to understand. I will try to summarise my own amendments in this group as clearly as I can-not, as I said, to argue the points but simply to give the Minister the chance to go on the record to give me reassurance on whether there is any gap in the law. I can then reflect on that before we come back on Report.

Amendment 56A seeks to outlaw harassment on the basis of sexual orientation in schools, as well as in services and public functions. If bullying pupils because of their sexual orientation constitutes harassment, it is very important that that should be covered. Harassing a child because they are gay is obviously one of the most serious forms of harassment. It is the classic example.

Amendment 56B seeks to outlaw harassment in schools on the basis of what the Bill calls "gender reassignment", although we would prefer "gender identity". Harassing a pupil because of their gender identity or because they are "trans" or in the process of gender reassignment is, again, surely unacceptable.

At present, the Bill contains no protection against harassment relating to sexual orientation outside the workplace and in schools, and no protection against harassment relating to gender reassignment in schools. Therefore, these amendments seek to bring in protection for schoolchildren and public service users against harassment on the basis of sexual orientation and school pupils on the basis of gender reassignment. Because of potential freedom of speech concerns, both the proposed new clauses in my amendments use the conjunctive definition-"and"-so that you have to show not only the violation of dignity but also an,

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

Amendments 61 to 63 seek to amend Clause 40 on a different matter-that is, third-party harassment. As it stands, the clause makes an employer liable for failing to take steps to prevent harassment by third parties against employees-for example, where someone is sent by an employment agency. However, subsection (3) says that this applies only where the employer, A, knows that the same employee, B, has been harassed on two prior occasions. That means that where a client of A-say, an employer who is an employment agency's client-harasses a number of A's employees on numerous occasions, so long as the same employee has not been harassed twice, A is not liable for failing to take preventive measures to stop the harassing behaviour. Therefore, these amendments broaden the protection covering third-party harassment of employees by ensuring that an employer cannot avoid liability by exposing a different employee to third-party harassment on the same grounds. They also ensure that third-party harassment extends to a person who has applied for employment.

Obviously we need to listen very carefully to what the Government say on Amendment 106 in the name of the noble Lord, Lord Ouseley. I am not sure that he has spoken to it yet; if he has I apologise.

Amendments 106ZA and 106ZB would make it unlawful for the responsible bodies of schools to harass pupils on the basis of sexual orientation or gender reassignment. Clause 85(10) currently allows the responsible body of a school to harass current or potential pupils on the grounds of sexual orientation, as well as gender reassignment and religion or belief. There is evidence that harassment on these grounds within schools is a serious problem. Therefore, deleting Clause 85(10)(a) and (c) would remove sexual orientation and gender reassignment as exemptions. The amendments would mean that teachers and school bodies could not harass students because of their sexual orientation.

I am sorry to have gone through all that in so much detail, and I am perfectly sure that it will make sense only when we have heard the Minister reply in full, but I hope that that is a convenient and fairly speedy way of dealing with the issue.

Photo of Baroness Gould of Potternewton Baroness Gould of Potternewton Deputy Chairman of Committees, Deputy Speaker (Lords) 8:30, 13 January 2010

My Lords, I rise to take part in this debate principally to deal with the last point that the noble Lord, Lord Lester, raised about harassment in schools. First, however, it is important to make it clear that while evidence of harassment from a range of sources has been raised, it is suggested that in most of those cases, the victim could potentially have brought a direct discrimination case. To the Government, that means that there is no reason to extend any of these harassment provisions. In practice, not all harassment incidents will be covered by the Bill as it stands. Direct discrimination will not cover harassment where there is no actual or hypothetical comparator or, in instances, where others are treated equally badly.

I return to harassment in schools and the exclusion of a school's liability for children who suffer harassment on the grounds of gender reassignment, religion and belief or sexual orientation-harassment by teachers or other school staff as opposed to pupils, serious as that is. Many people find it hard to understand why harassment of school pupils is prohibited on grounds of race, gender and disability, while sexual orientation, religion or belief, and gender assignment should be explicitly excluded. There is no reason for this exclusion as there is clear evidence of harassment in schools on the grounds of sexual orientation, gender assignment and, to a lesser extent, religion and belief.

Occurrences of gender reassignment issues are rare at school age but are not unknown and when they occur there is significant risk of serious harassment. The 2007 Stonewall report, The School Report, concluded that 65 per cent of lesbian and gay secondary school pupils in Great Britain had experienced homophobic bullying; 41 per cent of those had been physically bullied and 17 per cent had experienced death threats. The noble Lord, Lord Lester, made the point about bullying and harassment. To me they are indivisible. Therefore, if I use the word "bullying", I am also using the word "harassment". To continue with the Stonewall report, 30 per cent of lesbian and gay pupils report that adults have been responsible for incidents of homophobic bullying in their schools.

The UK charity Beatbullying has just reported that of more than 800 children between the ages of 11 and 16, 23 per cent had been harassed because of their religion or belief. The young transgender person forming their identity in school faces bullying and harassment. Some 64 per cent of young trans-men and 44 per cent of young trans-women will experience harassment and bullying in school, not just from their fellow pupils but also from staff and teachers. A provision that protects school pupils from harassment on the grounds of gender, race and disability, but not on other grounds, carries the clear public message that harassment on grounds of gender reassignment, sexual orientation or religion or belief is permissible.

It is often said, and has been said by Stonewall, that the Bill as it stands actually covers all those cases. I have yet to have anyone actually come to me and illustrate that. It is said, but I want to know. If such a case of indirect discrimination in which a school pupil was harassed was actually found and identified, could someone show me where in the Bill that person would be protected?

Having said all that, I appreciate that the Government have sought to address this particular problem in government Amendments 138 and 139, which I welcome and which give me some little comfort. As I read them, these amendments strengthen the case of it being discriminatory for a teacher or anyone else working at a school to harass or bully a pupil because of their sexual orientation or gender identity. I really hope that that is the case. I wait with interest to hear my noble friend's reply to the debate so that she can show me that that is so.

Photo of Lord Elton Lord Elton Conservative 8:45, 13 January 2010

In equating harassment with bullying, I align myself with the noble Baroness. I also wish to express a wider concern. Bullying in any form on any grounds is unacceptable and every school ought to have a duty to protect every child from it. That is difficult to do, and it is not always possible to identify what is going on. One can only identify the person to whom it is happening. The child involved is often reluctant, for reasons of fear, retribution or amour propre, to accept that it is happening. Bullying can take many forms; it can be verbal as well as physical. The concern that I am trying to express is that by picking off particular sorts of bullying, we may somehow reduce the importance of protecting children from all other sorts of bullying, which can be just as harmful or miserable. I hope that the noble Baroness will bear that in mind and reflect on it between now and Report; or if she can say something now, I would be glad to hear it. I am reluctant to subscribe to something that focuses interest on one particular area of bullying which might reduce it on bullying as a whole.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

The problem is that the Bill already singles out certain forms of harassment and bullying. We are trying to fill the gap. If it is on one of the protected grounds it is a particularly invidious form of bullying which belongs in the Equality Bill, but I quite agree that other forms of bullying are equally objectionable. This Bill cannot deal with those, so we are concerned with filling the gap.

Photo of Lord Elton Lord Elton Conservative

I accept that, but it is rather like filling the gaps in a sieve, as it is unlikely to have sufficient effect. I do not want to detain the Committee unnecessarily now, but we need to give our minds to it. I regard it as a weakness of the Bill as a whole, not just something to be considered in this amendment.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

I was very taken with what the noble Baroness, Lady Gould, said. Indeed, I rather wondered why she had not spoken in favour of some of the direct discrimination, indirect discrimination and harassment points that I was trying to make. The noble Lord, Lord Lester, is right that if we leave these groups out we will be creating a division with the rest of the bullying that we are attempting to tackle.

I fear that the business of bullying in school reflects to some extent the parental attitudes-it clearly must do. It also indicates that we have not taken seriously enough or attempted to deal with some of the ways in which this could be combated much earlier. I remember referring previously to a group of schools that literally make it their business to ensure that someone who is a tiny bit older than every new child entering the school has a duty to see that the child settles in. If anything goes wrong the responsibility lies with the one who is meant to be mentoring that child. We could make it a positive duty in every primary and nursery school that whoever is new to the set-up is integrated and taken for what they are, warts and all, and sees themselves as part of the community. That is what we are all about. We are an extremely varied community and it is crucial that that begins early.

Photo of Lord Elton Lord Elton Conservative

It is indeed crucial, but there is a limit to how much we can legislate for the proper care of children. The noble Baroness is speaking of proper pastoral care in school, but if we were to start making laws about all pastoral care it would, first, take up an enormous amount of parliamentary time and, secondly, kill the school.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I thank the noble Lord, Lord Ouseley, for his very interesting speech on Amendments 51 and 106. I want to make a few short points on Amendments 56A, 56B and 106. The first is that we on these Benches would of course like to reduce bullying in schools and make sure that no child is made to feel unhappy or treated badly for any reason, whether it be for their colour of skin, gender, religion, sexual orientation or any other characteristic, protected or not protected. Nevertheless, as my noble friend Lord Elton said, we believe that in situations where bullying is happening between children-the most obvious third party in this case-the law is not the right place for it to be addressed. There is already clear guidance on this from the Department for Children, Schools and Families. This is an issue which should be dealt with by the school and the appropriate school authorities. The intention behind the amendment is truly laudable but, unfortunately, I am not sure that this is the right way to find a solution to the problem.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

This group of amendments seeks to extend and clarify the protections against harassment in the Bill. I will address all the amendments in the group and speak to government Amendments 138 and 139 at the same time. We are confident that there is no gap in the Bill in the protection against conduct which amounts to harassment. In some areas such as employment there is specific protection, and where this is not the case, a remedy is provided by way of detriment. I hope that these remarks will show that that is the case.

In Amendment 51, the noble Lord, Lord Ouseley, seeks to extend the third limb of harassment provisions to all relevant protected characteristics. Currently, the third limb of harassment covers the situation where, for example, a woman is dismissed and believes that the real reason why this has happened is that she refused to sleep with her boss. This protection only applies to sexual harassment and harassment related to sex and gender reassignment. Amendment 51 seeks to extend this protection to all relevant protected characteristics. However, we do not have any evidence that this form of harassment is a problem in the workplace; and where this protection applies now, it is to comply with our European legal obligations.

I now turn to a number of amendments which have to do with harassment in schools. I recognise that there has been some concern about the fact that the Bill does not explicitly apply harassment protections on the grounds of sexual orientation and gender reassignment to schools. The fear is that this might leave schools free to harass pupils on these grounds. Amendments 106ZA and 106ZB, tabled by the noble Lord, Lord Lester, would put right this supposed deficit while applying a rather higher test of harassment than exists elsewhere in the Bill, for reasons which he has explained and which I understand. However, we are confident that this is not necessary and I hope I can persuade him that that is the case.

The Government are very clear that school children should not be subject to detrimental behaviour because of sexual orientation or gender reassignment and that the Bill should support this policy. We have examined all the examples that have been put to us of behaviour which anyone would understand to be harassment and we are confident that there is not a gap where there is unacceptable treatment of a child by a school. Situations such as a teacher ridiculing a child because of his sexual orientation or a teacher encouraging other pupils to mock a pupil because he was undergoing gender reassignment would be considered less favourable treatment and therefore amount to direct discrimination. In fact, in any situation we can envisage, it would be unlawful discrimination for anyone working in a school to bully a pupil because of his sexual orientation or gender reassignment. That is the position that we intend to make absolutely clear in Amendments 138 and 139, to which I now turn.

Clause 204 provides general interpretation for the purposes of the Bill. This clause makes it clear that detriment does not include unlawful harassment as defined in Clause 26. Through the Explanatory Notes to the Bill, we have sought to explain two things. First, this means that where the Bill provides harassment protection explicitly, it is not possible to bring a claim for direct discrimination by way of detriment on the same facts. Secondly, it means that where harassment is not prohibited explicitly-for example, in the case of sexual orientation and gender reassignment in education in schools-detriment includes unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. Therefore if a pupil was subjected to unwanted conduct by his school that satisfied the definition of harassment in Clause 26 and he believed that it happened just because he was gay, he would be able to seek a legal remedy under Clause 85. Depending on the facts, this might be direct discrimination by way of detriment.

However, a number of organisations and Members in another place have expressed concerns that it is not clear that this provision in its current form can be read in the way we intend. These amendments are therefore essential to remove those doubts and clarify exactly how the provisions will work. I hope that many of those who have expressed concerns will be reassured by this clear statement that behaviour that amounts to harassment will be caught by the discrimination provisions where explicit harassment provisions do not apply.

Amendment 106 was tabled by the noble Lord, Lord Ouseley. I understand his concerns over a sensitive and important issue. I assure him that I fully understand that bullying is a terrible problem that can ruin the lives of young people. The Government take it very seriously and are doing everything we can to tackle it. The relationship between one pupil and another is not covered by discrimination law and we do not think it appropriate that it should be. It is obvious that the relationship between a school and its pupils is covered, and I assure the noble Lord that there are already statutory duties on schools to deal with bullying. Head teachers in England and Wales are under a duty to put measures in place to prevent all forms of bullying and the Department for Children, Schools and Families has provided guidance for schools on dealing with racist, sexist, religious, homophobic and transphobic bullying, as mentioned by the noble Baroness, Lady Warsi. The guidance makes it very clear that a school must take all these forms of bullying seriously and that a failure to do so would mean that it would be vulnerable to discrimination claims.

The equality duty in the Bill will also have a part to play in ensuring that schools address issues around the treatment of gay and transgendered children in schools. For example, it should encourage schools to develop and improve their anti-bullying strategies to deal effectively with the issues that arise in individual schools. We think that making schools liable to face charges of harassment because of bullying by pupils or third parties is a potentially divisive measure that could lead to unforeseen outcomes, such as schools' bullying policies being driven by the fear of litigation, or even money intended for education being used for the payment of legal fees and damages. I believe that we already have measures in place for schools to protect pupils and to deal with bullying in all forms, including bullying because of a protected characteristic.

Amendment 56A, tabled by the noble Lord, Lord Lester, also concerns harassment in the provision of public services and public functions. The noble Lord is seeking to ensure that users of public services are not subjected to harassment related to sexual orientation. It is true that people using public services do not have the same degree of choice about using them as those who are seeking commercial services where-if they do not like the way they are treated in a shop, for example-they can go elsewhere. Nevertheless, despite public consultation and active engagement by government officials with individuals and organisations who say that the type of conduct to which these amendments would apply goes on, these groups have provided us with no evidence to support that view. We are confident that the direct or indirect discrimination provisions would cover any unwanted conduct that service users may encounter. We should not forget that the equality duty has a role in ensuring that public authorities, in their capacity as service providers and in the provision of their public functions, will now have to give due regard to the need to foster good relations in respect of all protected characteristics, including those in respect of which no equality duty yet applies.

Amendments 61 and 63 extend liability for third party harassment to cover applicants for employment, but it is difficult to envisage a situation in which this protection would be necessary. It is unlikely that a customer or client would be in a position to harass an applicant for a job, much less repeatedly, and no evidence has been presented to indicate that harassment of applicants is a problem. The proposal would impose significant burdens on employers, and we believe it would be a disproportionate extension of the law.

In Amendment 62, the noble Lord, Lord Lester, seeks to extend employer liability for third-party harassment. This would cover the scenario, for example, where an employer would be liable for sexual harassment of a female by a client when he knows that that or another client has previously subject other female employers to sexual harassment. Only in these flagrant cases is it appropriate to go beyond the normal protections afforded under discrimination law by making an employer liable for failing to prevent the actions of third parties over whom he has little or no control. This is what Clause 40 now does.

This extension would go much further and impose a costly liability. We are aware of the concerns that the noble Lord, Lord Lester, raised. Under the harassment provision of British discrimination law a person needs to show either an intimidating, hostile, degrading or offensive environment, or that their dignity was violated, whereas the definition in the related European directive required both these limbs to be satisfied. However, the two limbs largely overlap, so if there is any extension to the European approach it is of limited effect.

Conduct that violates a person's dignity almost invariably also creates an offensive, degrading or humiliating environment for that person and vice versa. Where the harassment is unintended the reasonableness test, as I shall call it, that a court or tribunal must apply ensures that, along with the complainant's perception, all the circumstances of the case and the reasonableness of that perception are taken into account in deciding whether the conduct can constitute harassment. For these reasons, I ask the noble Lord to withdraw his amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 9:00, 13 January 2010

My Lords, I will explain where I strongly disagree, not where I agree, so that I save time later and do not have to speak to any other amendments in this area.

First, it is not correct to say that without that word "and" one is not creating a very dangerous concept. "Dignity" is not a legal rule. It is a value. To allow someone to bring a claim on the basis of their dignity is a dangerous thing to do. It is not saved by the requirement of reasonableness because it still allows the claim to be brought. Like the right reverend Prelate, I suspect that we will seek to deal with that on Report.

Secondly, I hope noble Lords will forgive my saying that this is the most convoluted and complex way of dealing with a problem that the noble Baroness, Lady Gould, has drawn very clear attention to. Instead of doing the simple thing, which is to make clear in the Bill that homophobic bullying on the basis, for example, of sexual orientation, is to be included, we are told that Clause 204, which is an interpretation clause, is to have the following language to tell the public what the law is. I shall read it out because it is hilarious to think that anyone should come to the conclusion that this is the right way of dealing with an important problem. The amendment states:

"Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication"- notice the double negatives piling up-

"does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic".

I expect Ministers have had that explained to them and understand what it means. What it actually means is that you still have to show discrimination and not harassment, even though the concepts are quite different in the Act. Harassment is one thing and discrimination another. The question raised by the noble Baroness, Lady Gould-why we do not do the simple thing and deal with this problem in the Bill-has not been answered.

I made it clear to the Government that this is one of several things that my party attaches an enormous importance to; there are about four of those core major things. I am sorry to say that I am not satisfied by the answer. We will have to come back to this at a later stage.

Photo of Lord Elton Lord Elton Conservative

I want to pursue what I was saying a little further. The noble Lord, Lord Lester, said that it was not possible within this Act to address all aspects of bullying and that we could only fill the gaps between those which had already been specified. I suspect that the Long Title would enable us to do something quite simple and would please the noble Lord, Lord Ouseley. A very nice obligation would be placed on schools if we just tweaked a little his Amendment 106 to make it read:

"The circumstances in which the responsible body of ... a school"- rather than stating "such a school"-

"is to be treated as harassing a pupil ... include those where", leaving out "under subsection (3)(a)", and then take it out of the limitations of Part 2. On the occurrence of a second occasion of the bullying of an individual, there would be a legal duty to intervene.

I do not like imposing legal duties on common-room staff, but when this problem cannot be solved in any other way, which it has not been, I would not object to trying this. It seems to me that that would be possible and would be within the Long Title.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

As ever, the noble Lord comes up with solutions that no one else has thought of. I know that he wants to determine what the proposers of these amendments think.

Photo of Lord Elton Lord Elton Conservative

I was seeking the opportunity to get the opinion of the noble Lord, Lord Lester, on the pronunciation of the principle at stake. I think that principle is expressed as inclusio unius, exclusio alterius-if you put some things in, you imply that everything else is left out. We are putting things in which I do not think that we should.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

I am delighted to hear the noble Lord, Lord Elton, using Latin because he may not know that since the reforms of the noble and learned Lord, Lord Woolf, I am not allowed to use Latin in court any more. I am not even allowed to use "writ" because that is considered to be not user-friendly, so I have to say "claim form". I continue to say "writ" and I continue to use Latin, and I am very glad that he has done so as well.

Of course, I am sympathetic to the idea that we should legislate to deal with all forms of bullying, but in this Bill we are dealing with equality of treatment without discrimination on specified grounds. What I seek to do is more modest; that is, to make sure that bullying harassment on those grounds covers all the grounds and not only some of them. The expression noscitur a sociis-if one is showing off-might just as well apply, in the sense that in looking at the whole of what one is talking about, it is completely irrational to give the message, except through this convoluted stuff, that homophobic bullying in a school is not to be treated in the same way as racial bullying. That is the rather modest thing we are trying to do.

Photo of Lord Ouseley Lord Ouseley Crossbench

My Lords, I have heard the explanation from the Minister on both my amendments on third-party harassment in schools and trying to extend the harassments application in Clause 26. I am not convinced by the answer I was given with regard to Amendment 51. I certainly would like to come back to that on another occasion. Equally, from what has been said by others who are not happy with the explanation on Amendment 106, I hope that we can get an assurance about looking at this again. I do not wish to detain the House, and on that basis, I seek leave to withdraw the amendment.

Amendment 51 withdrawn.

Amendments 52 to 54 not moved.

Clause 26 agreed.

Amendments 55 to 56B not moved.

Clause 27 agreed.

Clause 28 : Application of this Part

Amendment 57

Moved by Baroness Warsi

57: Clause 28, page 15, line 6, leave out paragraph (a)

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

Amendment 57 is to probe the application of age as a protected characteristic. The purpose is to ascertain from the Government the exact reasons for excluding those who are under 18 from the protected characteristic of age. In another place the Minister said that this was not the best way to protect children with regard to public services. We fully take on board the points she made about the importance of addressing deeper problems, such as resource allocation or finding better and more efficient ways of using existing resources.

Nevertheless, Young Equals, a group of charities and children campaigning to stop age discrimination, is still concerned about the prevalence of discrimination facing those under the age of 18. It quotes a Department for Children, Schools and Families survey which states that 43 per cent of under-18 year-olds reported that they had been treated unfairly because of their age. Moreover, nearly two-thirds of teenagers felt that they had experienced age discrimination in some form or another. In this survey, age discrimination was the biggest example of discrimination cited. There does, therefore, seem to be a problem. Could the Minister inform the House whether the Government have any plans to address this problem within this Bill? The suggestion in Committee in another place appeared to be that other solutions to this problem were being considered, but the Solicitor-General set out clearly that discrimination law was not the best place to sort this problem out. Will the Minister set out some of the alternative solutions and different ways in which the problem might be addressed if the Bill is not the place to do it? We accept that the Bill may not provide the best vehicle, but can the Government offer any assurances to Young Equals on this count?

In another place, the Minister stated that it might be difficult to include children under the age of 18 in the section on provision of services and public functions because different ages would have to be treated differently. The Solicitor-General cited that there was a great difference, for example, between the needs of a two year-old and a seven year-old, and those of a 72 year-old and a 77 year-old. This, of course, is true and this thinking is used to define the fact that there are rules stating that young people can and cannot do things at certain ages. This may be for their own protection, such as the age for legally purchasing alcohol, or it may be for the benefit or others, with specific services that cater for an older clientele. This is a sensible approach and differential treatment must be maintained.

The Government Equalities Office consultation recognises that equality does not mean uniformity of provision. Indeed, the reforms are all about treating people as individuals, whatever their age, circumstances or lifestyle. Could the Minister, therefore, set out why service providers would have to treat children of different ages in the same way as adults? This would be useful to aid our understanding of the operation of these clauses. I look forward to the Minister's response to this probing amendment. I fully expect to agree with her, but it would be useful to have some of our questions answered and explanations laid out on the record. I beg to move.

Photo of Lord Morris of Handsworth Lord Morris of Handsworth Labour

My Lords, the substantive argument supporting the amendment has been ably put by the noble Baroness, Lady Warsi. I want to reinforce my support for the amendment, based on the anti-discrimination provisions contained in the Bill, which include age. Measured by the protected characteristics in Part 2, age discrimination is less protected than any other grounds. On this basis, Clause 28(1)(a) gives no protection against age discrimination in the provision of goods and services for those under 18. Put another way, this clause makes discrimination against those under 18 a permissive act, and it is that which the amendment seeks to remedy.

I find it strange that somebody who is 18 or under can take matrimonial responsibilities or die for their country, but the state reserves the right, under the relevant clause of the Bill, to allow practices that discriminate against them for the provision of some goods and services.

I am aware that my noble friend the Leader of the House disagreed with my comments at Second Reading, but I thank her nevertheless for her letter of explanation which subsequently followed. In support of my contention, I believe I need look no further than the report of the Joint Committee on Human Rights, published in November last year following its scrutiny of the Bill. The Joint Committee records:

"The total absence of protection against age discrimination for those under 18 in service provision and the limited protection in relation to the performance of public functions means that children who are subject to unjustified discrimination are left with little or no legal protection. This may prevent children enjoying full protection of their rights as set out in the UN Convention on the Rights of the Child ... We consider that the situation of children is no different and that exceptions to the general prohibition on age discrimination could also be made as required to cover age distinctions where children are involved".

The committee concludes:

"Age discrimination constitutes an unjustified denial of the right to equality and remains a serious problem in British society. The prohibition of age discrimination in service provision and the performance of public functions will help ensure that all age groups enjoy equality", and are treated fairly and justly in the provision of services.

Eighteen year-olds have a right and an aspiration not to be discriminated against in respect of goods and services and public provision. I say this not only because it is morally right but also because international experience supports that view. The Australian Age Discrimination Act 2004, covering among other things goods and services, explicitly includes children. This amendment provides an opportunity to strike a blow on behalf of children and young people against permissive discrimination. Like the noble Baroness opposite, I look forward to the assurances that the Minister is able to provide in respect of the principles contained in the amendment.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 9:15, 13 January 2010

My Lords, contrary to some, I am not like WC Fields; I do not hate kids. However, the amendment reminds me of what happened when I introduced the infamous amendment that allowed light parental smacking. I won the support of all the violent Members of this House, who thought that I was a real man for doing it, and the opprobrium of all those who were part of the children's rights movement. It was like that because we were debating whether it was right to allow a parent to smack a child lightly when they could not smack their husband or wife lightly, because it would be common assault. The reason why both Houses came to the conclusion that there should be a difference of treatment between children and adults was that, in some respects, children are not adults. While that debate was going on, my late lamented friend Earl Russell whispered to me the following wisdom. He said: "Why don't you tell the House what John Locke, the great philosopher, said?". This was that children are not born equal; they are born to become equal. I believe this is true. The reason why one allows differences to occur is because children are not adults and one has therefore to allow differences in some contexts.

I was a member of the Joint Committee on Human Rights and have had a continuing disagreement with them as the noble Lord, Lord Morris, may know, going right back to the earlier issue. I fully appreciate the argument and I am totally opposed to some of the kinds of discrimination to which he refers, but I do not think one can ignore the fact, when legislating, that there are contexts in which children are not the same as adults. They are entitled to equal treatment and not to be discriminated against unfairly, but there have to be a range of situations in which differences of treatment on the basis of age are allowed for children and young people.

Photo of Baroness Royall of Blaisdon Baroness Royall of Blaisdon Chancellor of the Duchy of Lancaster, House of Lords, Leader of the House of Lords and Chancellor of the Duchy of Lancaster

My Lords, I am grateful to the noble Lords for tabling this amendment, because it is helpful for the Government to have an opportunity to put on record why we have limited the protection from age discrimination in services and public functions to adults. I rather like the quotation from the noble Lord about Lord Russell.

First I should make clear that children and young people do have extensive protection under the Equality Bill. Like adults, they are protected from discrimination because of race, disability, gender, religion and belief, sexual orientation and gender reassignment and, like adults, from harassment because of disability, race and sex. Amendment 57 seeks to extend the ban on age discrimination in the provision of goods and services and the exercise of public functions to people under the age of 18. The Government have been clear from the outset that we are not minded to do this, and the decision not to has been taken only after very careful thought.

For adults we can identify only a very few situations where it is appropriate to differentiate services-as we did earlier this evening-according to age. The situation for children, however, is very different. It is almost always right to treat people under the age of 18 in a way that is appropriate to their age and particular stage of development, and it is often appropriate to treat them differently from adults. This is because age is a good indicator of a young person's level of development and their need for support or protection. It significantly influences how they need to be engaged, the services they require and the levels of personal responsibility and freedoms they should be afforded.

For example, three year-olds are very different from 10 year-olds, who in turn are very different from 15 year-olds. It would be nonsensical to require service providers to be age-blind when addressing the needs of children and providing services. There is no easy or sensible way to set arbitrary age limits on what should be appropriate treatment of children of different ages for every type of service that may be provided. Even 16 and 17 year-olds often need to be treated differently from adults. For example, they are restricted from purchasing tobacco products, alcohol, offensive weapons and knives, fireworks and sparklers and so on. The law also limits a child's responsibility in areas of contract and tort, including their liability for damages and their capacity to enter into contracts for goods and services.

We asked for examples of age discrimination to inform the development of policy on several occasions, but most of the examples of poor treatment of young people presented to us-the sort of examples cited by Young Equals-come from negative attitudes towards children, a general low opinion and mistrust of young people, and a lack of age-appropriate services for various age groups.

I have had a note passed to me about the various problems mentioned by Young Equals. The Government's Aiming High for Young People strategy aims to increase young people's influence over services, improve access to positive activities and counteract the way young people are often seen negatively. We are providing funding for local authorities to improve and involve young people in developing facilities and the Every Child Matters strategy and the Children's Plan put children at the heart of government policy. We are dealing in different ways with many of the things that Young Equals raise.

Outside the various age limits specified in law, there are many age-appropriate and age-restricted services that exist to help young people in their transition to adulthood. These include sexual health screening, teenage pregnancy services, relationship counselling, substance misuse advisory groups, young people's mental health and wellbeing support services, youth offending schemes and many others. Of course, these are in addition to more general age-related services such as crèches, childminding, play areas and activity centres. By not extending the age discrimination provisions to under-18s, our main concern has never been with the various age limits set out in statute, but with the need to protect the widespread, numerous age-appropriate and age-restricted services provided for young people to support them in their transition to adulthood and to assist them in taking on increasing responsibility for their own lives.

It would be extremely complex to provide exceptions in law to protect all such treatment. However, even if we were able to provide such exceptions and an objective justification defence, many service providers would simply standardise services across all age groups or withdraw from providing age-appropriate services altogether out of fear of being tied up in complaints that could end up in court. There would also be a reluctance to commit the management and other resources necessary to ensure that their services are always delivered in an age-blind way, or that the objective justification assessments have been properly carried out to prevent challenge in the first place. It is just not worth the significant risk of compromising children's services and the widespread, legitimate, common-sense uses of age in this way, in a fruitless attempt to address young people's general sense that older people do not treat them with enough respect in circumstances that would not fall within the scope of discrimination law anyway.

We take such issues seriously, and the view that young people deserve more dignity and respect is one with which I have great sympathy. But there are better ways to tackle the problems that children face, including specific, tailored non-legislative measures for children and young people, existing legislation such as the Human Rights Act and the new equality duty, which is included in the Equality Bill. For this reason, the amendment is unnecessary and therefore I ask that it be withdrawn.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I thank the Minister for her response, which was interesting in how the Government seek to engage with young people to ensure that their voices are heard. As I said, this was very much a probing amendment to try to address some of the concerns raised by the various children's charities. At this stage, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Clause 28 agreed.

Clause 29 : Provision of services, etc.

Amendment 57ZA not moved.

Clause 29 agreed.

Clauses 30 and 31 agreed.

Amendment 57A

Moved by Lord Mackay of Clashfern

57A: After Clause 31, insert the following new Clause-

"Conscientious objection

Nothing in this Act shall have the effect of requiring a person (A) to provide a good or service to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection."

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, I believe that there is a real sense in which the extent to which a society or country demonstrates its respect for conscience is a crucial criterion of the extent to which it has attained a civilised status. This is made very plain in the Universal Declaration of Human Rights, whose very first article says:

"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood"- the last part being already pronounced by Robert Burns.

Respecting conscience is not merely a matter of human rights; it is also a matter of prudence. One of the earliest speeches that I heard in this House was given by the former Lord Chief Justice, the late Lord Lane. He was a man of great experience in the law, and the criminal law in particular. In it, he spoke of the need to ensure that we should not denigrate conscience, because he recognised, rightly, that conscience plays a very important role in upholding the criminal law. As Edmund Burke once said, the less you restrain a man from within, the more you are required to restrain him from without. Failure to respect conscience is a fundamental mistake on the part of any state that aspires to be Liberal Democratic in relation to human dignity and the maintenance of law and order.

Over the many years during which I have been involved in the law and the political process, people have often grumbled to me about aspects of our legal system. Until very recently I have always responded that in Britain, while there are undoubtedly matters about which people could be legitimately anxious, one could always be assured that the law would not require you to violate your conscience. In recent years, however, and certainly since 2006, this has been brought into question. I will give an example or two.

At the moment, the goods and services legislation with respect to religion and belief which was introduced by the Equality Act 2006 and is recounted in the Bill before us today, puts a gay printer in a very difficult position in the event that he is approached by an evangelical or Catholic theologian who wants him to print a theology book outlining the belief that same-sex sexual practice is a sin. He cannot print the book without becoming complicit in promoting a view with which he strongly disagrees and which he may feel violates his own identity. However, under the terms of the goods and services legislation it is not clear that he could refer the theologian on to another printer.

Similarly, the goods and services legislation with respect to sexual orientation introduced by regulations mandated by the 2006 Act and again referred to into the Bill-although now, I am glad to say, in amendable primary legislation-puts an evangelical or Catholic printer in a very difficult position if they are approached by a gay rights organisation and asked to print material that promotes same-sex sexual relations. Once again, the printer cannot print this material without becoming complicit in promoting something that he regards as sinful, violating his identity.

The conflict between religion and belief and sexual orientation is a recurrent challenge, but we must remember that there is actually no conflict between sexual orientation and religion. There are no mainstream religious groups, certainly within the Christian tradition, that object to a person's sexual orientation. The objection is narrowly to the practice of sex outside marriage.

This matter was mentioned in a judgment of the court in Northern Ireland in connection with an application for judicial review. Mr Justice Weatherup noted that the view that same-sex sexual activity is sinful is an orthodox religious belief which is worthy of recognition in a modern democratic society. In the original proposal for a council directive in the European Community on equal treatment there is an explanatory memorandum which sets out views about the provisions in the proposal. It states:

"The discriminatory grounds referred to in paragraph 1 coincide with those laid down by Article 13 of the Treaty, with the exception of the ground of sex. With regard to sexual orientation, a clear dividing line should be drawn between sexual orientation, which is covered by this proposal, and sexual behaviour, which is not. Furthermore, it should be underlined that this proposal does not affect marital status and therefore it does not impinge upon entitlements to benefits for married couples".

The important thing is that, according to that memorandum, sexual orientation is distinct from sexual practice.

The problem is around goods and services. The difficulty arises because people who have these views object to the practice, for example in their homes, of sexual relations outside marriage. That is the view which they take and, as I have just quoted, it is a fairly orthodox view which requires to be recognised in a liberal democracy nowadays.

When this was discussed before, it was suggested that the person who, for example, provides bed and breakfast could not make arrangements which required non-married couples, whether same-sex or heterosexual, to use different rooms in their establishment. I am certainly very much aware of that as a difficulty in, for example, the Scottish highlands, where quite a number of people go in for bed and breakfast. They are people who really are dependent on that type of living, because not too many opportunities for alternative employment are open to them in the remoter glens of the Scottish highlands. On this particular question, if a boarding-house keeper has the arrangement that unmarried couples-whether homosexual or heterosexual-are to be accommodated in their establishment in separate rooms, is that a breach of the regulations? It is a simple question, to which I would be glad of an answer.

The idea that conscience should rule in circumstances such as we are familiar with is, for example, referred to in the abortion legislation. A doctor who has a conscientious objection to performing an abortion is not obliged to do so. Even if he is with the National Health Service, he can on conscientious grounds object and refrain from doing so. I particularly stress the fact that when our nation was in great straits, conscientious objection was allowed to people who, on that ground, sought exemption from military service. That was recognised at a time of acute national distress when it meant that if one person did not go to be a combatant, somebody else would be exposed to the risks that that person escaped. That was the kind of situation, yet our country made it perfectly plain then that genuine conscientious objection was allowed.

This Bill is in a unique position to deal with that problem, because the previous introductions in relation to sexual orientation, for example, were done by means of delegated or subordinate legislation and were unamendable. I welcome this Bill very much and certainly hope that it will, suitably improved, reach the statute book in good time. Yet I certainly think it right that it should be improved in this respect, by allowing individual conscience when it comes into play as a genuine conscientious conviction. It is possible to have lots of things that are not genuine, but I am talking of a genuine conscientious objection which should be allowed. That would promote the brotherhood of which Robbie Burns spoke and of which Article 1 of the human rights declaration speaks. I should probably declare a number of interests. I am an office-bearer in various Christian societies and a member of some others. I beg to move.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 9:30, 13 January 2010

My Lords, nobody could reply to the noble and learned Lord properly after such a wide-ranging speech, and at this hour, and I will not attempt to do so. However, perhaps I could just explain extremely briefly why I respectfully disagree with him about his entire approach. It is an approach which I believe will be contrary both to European Union and European Human Rights Convention law on equality.

It is of course the case that freedom of conscience, religion and belief are as important as human rights as the principle of equal treatment without discrimination, and that both have to be accommodated within our legislation. That is entirely the case and therefore when we come later on to consider the position of the churches I am sympathetic to recognising that we should render unto Caesar only those things which should be rendered unto Caesar, and unto God those that should be rendered unto God. Therefore we should do nothing which would violate the basic tenets of the Christian or other churches in this area, provided that they are shown to be really necessary for their purpose. So we can leave that entirely on one side.

However the amendment which the noble and learned Lord puts forward is a blanket exception which, if it were to be accepted, would create a huge loophole in the whole of our discrimination law. It would mean presumably, for example, that a person could refuse to serve a gay person or a Muslim because they had a conscientious objection to doing so. I know that is not what is intended-

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

That is not exactly what the amendment says.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

No, it is not exactly what the amendment says but I am pointing out its implications. What it says is:

"Nothing in this Act"- that is to say, the whole of the Act-

"shall have the effect of requiring a person (A) to provide a good or service"- so that could be service in a shop-

"to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection".

So therefore it is a blanket exception in those areas.

Photo of Baroness Warsi Baroness Warsi Shadow Minister (Community Cohesion and Social Action), Communities and Local Government

I am sorry to interrupt the noble Lord, Lord Lester, when he is in full flow, but I would be interested in an example where somebody could potentially have a conscientious objection to serving, for example, a Muslim.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

The question would be whether it was a conscientious objection, for example a genuinely held homophobic belief. Let me give an actual example rather than a hypothetical one. Take the Ladele case. In Ladele, a public officer, a registrar of births and marriages, had a conscientious objection to carrying out a civil partnership ceremony. There is no doubt that it was a deeply held aversion to the idea of homosexuality, not just because of homosexuality as practised as the noble Lord would suggest, but because of the very idea that gay people should be entitled to be treated, for this purpose, in a similar way to married people. This person, who had a conscientious objection, refused to perform a state-funded, important function on conscientious grounds. The court, in a carefully reasoned judgment, explained why that was wholly unacceptable, contrary both to European and our domestic law. It is a good example because there is no doubt that the objection was conscientious but there is also no doubt that it would be completely intolerable if you allowed public officials in providing a service to decide on the basis of their own deeply held convictions that they were not prepared to carry out the service.

I shall not continue but I have no doubt that if this exception were there, we would immediately find ourselves in direct conflict with EU and ECHR law. They accommodate freedom of conscience, religion and belief rightly, but they do not do so in this way. I entirely respect where the noble and learned Lord is coming from. I respect his religious beliefs entirely. I understand the argument, but I do not agree with it.

Photo of The Bishop of Winchester The Bishop of Winchester Bishop 9:45, 13 January 2010

My Lords, I, too, when I read this amendment recently, was fascinated to see in which direction the noble and learned Lord, Lord Mackay, was going. I saw, on the one hand, the kinds of things that the noble Lord, Lord Lester, was saying, but, on the other, saw the fundamental importance of what the noble and learned Lord has put in the amendment.

However, before saying any more, I want to appreciate what the noble Lord, Lord Lester, said about the churches and the efforts that together we shall be making later in this Bill. I have a strong sense that the Government are now engaging to find a way through those elements that we shall perhaps come to the time after next. The question, as I hear it, that the noble and learned Lord, Lord Mackay, is putting runs somewhere in between the two noble Lords. As I heard him, I, too, believe in this question of the primacy of conscience, as I know the noble Lord, Lord Lester, does. However, the question that the noble and learned Lord is putting is: how hard will we work in this whole area of discrimination and equality to accommodate with the maximum fairness as many of the points at which a range of rights are intentioned.

That seems to be the question that the noble and learned Lord is asking your Lordships from a series of standpoints-if this is, as it were, a probing as well as a principled amendment, although I am not going to put words into the mouth of the noble and learned Lord, Lord Mackay, of all people. How hard will we work to try to accommodate elements of where we are in abrupt tension in all this very important and complex scene of rights, discrimination and equality.

He has just referred to the registrar and civil partnerships. He will remember that we had a spirited set of exchanges during the passage of the Civil Partnership Bill through your Lordships' House. Some of us then said-and the noble and learned Lord drew the analogy-that this was rather like medical doctors and abortion, where there is conscientious objection. Some of us were disturbed, as well as full of regret, that your Lordships' House did not accept that point in relation to civil registrars and civil partnerships and that something fresh was being brought into the registration service. It seemed to us that that point of view was legitimate.

We have been around the same course as regard the sexual orientation regulations and Roman Catholic adoption agencies. Many of us thought that there are plenty of other adoption agencies, so why keep pressing that point? That would be a good example of what I am suggesting. The implication of the amendment of the noble and learned Lord, Lord Mackay, is that each of us-if I can personalise it in this way; I just as much as you, you just as much as me-is bound to work as hard as we can to hold the whole range of different people's rights, because there is a sense around that some rights are better than others. Your Lordships' House must take extreme care that we do not affirm that.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, it will not surprise the noble and learned Lord that I will speak against his proposed new clause. It would mean that any service provider could refuse to provide goods or services if doing so would make them complicit in an action to which they have a conscientious objection.

It is our view that no one offering goods or services to the public on a commercial basis should be able to discriminate on any grounds. However, neither the current law nor the Bill requires service providers to provide a service that they would not normally provide. In the noble and learned Lord's bed and breakfast example, as long as the bed and breakfast applies the same rule to unmarried couples and couples not in civil partnerships, that would not be discrimination; making a couple in a civil partnership stay in separate rooms while allowing a married couple to share rooms would be discrimination. The bed and breakfast in question is okay as long as it treats homosexuals and heterosexual people in the same way. They can make everybody sleep in separate rooms but it would probably not be good for business.

We are talking here about everyday activities-such as shopping, going to the bank, eating in a restaurant, seeking assistance from the police, applying for planning permission or visiting a health clinic-which could for some people be made extremely difficult and unpleasant by discrimination. People are entitled to expect fair and unbiased treatment from commercial and publicly funded organisations, regardless of their protected characteristics. This Bill is designed to ensure they receive that.

For example, both local authority and privately run care homes offer a great deal of comfort to people in their later years. This is a privilege that should be available to everyone, not dependent on characteristics such as sexual orientation. People of all sexual orientations have the right to good quality care throughout their later years of life.

To achieve this, we understand that people working in both the public and private sectors may occasionally be required to undertake duties that they may not always agree with privately. However, as an employer, a service provider can when reasonably able take practical measures to respect the private views of staff. For example, if an individual registrar does not want to conduct civil partnership ceremonies because of their religious beliefs, a local authority could arrange for a different registrar to conduct the ceremony if there is one available. However, if-

Photo of The Bishop of Winchester The Bishop of Winchester Bishop

I am grateful to the noble Baroness for breaking off. Surely in that case the precise the point was that the local authority was not prepared to work in the way she has just described. Had it been so prepared, there would be no example.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

However, continuing this particular point, if there is no other registrar available, the local authority can and should require the registrar to carry out the ceremony.

The law therefore already allows for a measure of flexibility, although ultimately it is right that a service provider can require staff to perform certain perfectly lawful and legitimate functions if necessary. Allowing service providers a measure of flexibility helps them achieve a balance between ensuring that the end-user of the service receives a service without discrimination but that as an employer they can respect the private beliefs of their staff. This does not mean that a service provider needs to provide a service in a way that they would not normally provide it. For example, a Christian bookshop would not suddenly be required to stock a copy of the Koran. However, if a Muslim person wanted to buy a copy of the Bible, the bookshop could not refuse to sell him one.

The Government are determined to tackle discrimination or disadvantage because of any protected characteristic and there is no hierarchy of rights. We believe the Bill strikes a balance between potentially conflicting rights, for example by providing some specific exceptions for religious bodies on grounds of their doctrine. While the Equality Bill maintains everyone's right to express in a legitimate manner both religious and non-religious beliefs, it is only right that people employed by commercial and publicly funded organisations are not allowed to discriminate on any grounds, no matter what their private belief.

On the issue raised by the right reverend Prelate about abortion, the Human Fertilisation and Embryology Act 1990, as well as the Abortion Act 1967, contained provision that makes it clear that no person who has a conscientious objection to participating in any activity governed by these Acts shall be under any duty to do so. The law therefore explicitly protects those who have a conscientious objection from taking part in abortion treatment. That is where Parliament struck the balance between conflicting rights.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Is it not also the case that, quite properly, Parliament has required that if a particular doctor has a conscientious objection to carrying out the abortion but the termination of pregnancy is lawful and needed, the health authority has a duty to ensure that it is carried out, not by coercing that person in that context but by making sure the service is provided?

Photo of Lord Elton Lord Elton Conservative

Could one not apply the same practice to the case that the noble Baroness raised in her substantive remarks, which the right reverend Prelate then intervened upon? Surely the Bill would be more effective if there were a duty on an authority to take reasonable steps to accommodate the conscientious positions of its employees.

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I think I expressly said that we recognise that flexibility is built in-that an employer and service provider can, when reasonably able, take practical measures to respect the private views of staff. That is the case.

Photo of Lord Elton Lord Elton Conservative

That is exactly the point. The word is "can", not "must" or "should". It should be either "must" or "should".

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

This is not a very satisfactory way of proceeding because we are dealing with the issue in bits and pieces. However, under the European human rights convention and the Human Rights Act, is it not the case that if one were to act disproportionately and coerce someone against their conscience, that would violate their right to freedom of conscience, so in the end there would be a question of proportionality on the facts? It is not a question of black or white; under the Human Rights Act and the European convention the law sensibly allows a fair balance to be struck and maintained.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

Has the Minister completed her submission?

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

I do not think that there is anything more that I can add to my remarks.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

First, I thank the noble Lord, Lord Lester of Herne Hill, for saying that the amendment would produce a very large loophole. That is an immediate recognition that a lot of people are in this position. The noble Baroness shakes her head but I do not understand how she can get round the idea that it will cause a large problem if the amendment is accepted and, at the same time, suggest that that will not be the case. However, that is perhaps not the most central point that I want to make.

My central point is that if you take account, as I have sought to do, of the distinction between sexual orientation on the one hand and, on the other, practice arising from that, as well as sexual practice arising in the case of heterosexual people, then I do not believe that European law-or, indeed, domestic law if it were modified-would in any way be inconsistent with the general law of the European Union.

The Government's response is that there is a flexibility that enables private views to be accommodated to a great extent. If there were, I would not be moving this amendment. However, the fact is that the legislation has been built up in an extremely rigid way, as the case of the registrar shows. It is very often the case that those with strong conscientious objections are also very loyal and trustworthy-

Photo of Baroness Thornton Baroness Thornton Government Whip, Baroness in Waiting (HM Household) (Whip)

Will the noble and learned Lord allow me to ask a question? Would he for a moment substitute "ethnic minority" and "black" for "sexual orientation"? If he did that, he might see the problem that the noble Lord, Lord Lester, and I are having with his amendment.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

The situation is rather different. I do not know many mainline Christian organisations that have a conscientious objection to some form of interaction with black people. That makes a difference. I know that there was a regime that sought to establish itself on that basis, but that is not the situation with which I am dealing. I am dealing with the situation relating to the organisations that exist in this country and the sorts of views that they have. As the judge in Ireland said, it is an orthodox religious view with a pretty long history. It is a history that existed before I was born, which was quite a long time ago, and it is much older than that.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 10:00, 13 January 2010

My Lords, I think I have an experience that the noble and learned Lord does not have. My elder child is gay and came out many years ago. I do not think he would agree that the prejudice that gay people feel from homophobic people is the careful distinction between being gay and practising homosexuality in the bedroom. The problem is that homophobic discrimination is not so sophisticated. The mere fact that you are known to be gay gives rise to a lot of discriminatory treatment. When the noble and learned Lord says his remark about this being a very wide loophole shows that there are terrible cases, many of them about conscientious objection, that is not what I said. If this were to be in statute, it would create a gaping loophole that would authorise a form of discrimination that we would all deplore.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

My Lords, as I said, it is not the best point I wanted to make but it does acknowledge the fact, as the noble Lord said a moment ago, that it is a big situation. I am not for one moment seeking to say that discrimination on the ground of sexual orientation could be justified on the basis of conscience-not at all. I am saying that if doing what this requires in a particular case means that the person who is doing it is complicit in an action that is against his conscience, then he should not be compelled to do it under our law. That is nothing whatever to do with the example that the noble Lord has given, where there is no question of complicity in any action. Discriminating against, harassing or bullying people on the grounds of their sexual orientation is absolutely anathema to me. It has always been so. I have had experience in government office in relation to that. I am absolutely clear about that. I am also clear that there are situations in which this law is apt to require somebody to take action which results in something that is contrary to his conscientious view and therefore is in breach of his conscientious objection. If there is a real conscientious objection, I cannot see why the law cannot recognise that. The number is not large-the amendment is narrowly drawn. Although, according to the noble Lord, Lord Lester of Herne Hill, it is a big problem, I do not believe that this, in the way I would phrase the amendment, is a big point.

It is time we stopped, and it is certainly time I stopped.

Photo of The Bishop of Chichester The Bishop of Chichester Bishop

Before the noble and learned Lord stops, despite the hour, I should say that I am grateful that he is pressing the point about the distinction between orientation and practice. It seems to be fundamental. We will not agree about that, but it is one of the underlying questions that has bedevilled this discussion. There is another that the noble Baroness highlighted a moment ago, which we need to take note of before we finish. She repeated several times an expression about the need to respect people's private beliefs. One reason why I opposed the amendment trying to get rid of "philosophical" this afternoon alongside "religious" was precisely because our beliefs, whether religious or philosophical, inform our public attitudes and behaviour as citizens. The attempt to privatise belief, whether philosophical or religious, is a profoundly dangerous tendency and one that we need to address as we consider not only this but later amendments.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

We are not privatising beliefs; we are dealing with conduct.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

We are seeking to privatise the practice that should arise from the belief. If you do not act according to your beliefs, they are not worth very much. Belief is normally demonstrated as genuine by the way in which the person lives.

We have spent as long as we ought-or maybe longer-on this amendment, so I beg leave to withdraw it.

Amendment 57A withdrawn.

House resumed.

House adjourned at 10.05 pm.