Clause 24

Part of Equality Bill – in a Public Bill Committee at 1:00 pm on 18 June 2009.

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Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 1:00, 18 June 2009

Welcome back to the Committee and the debate, Lady Winterton. Amendments 230, 38 and 231 would make various changes to the definition in the applicability of harassment.  At the outset, I would like to deal with the question raised by the hon. Member for Oxford, West and Abingdon about why marriage and civil partnerships are excluded, because that point stands aside from the main thrust of the arguments.

We have already rehearsed the fact that the document “Discrimination Law Review” found little evidence of discrimination to justify the inclusion of marriage or civil partnership in the Bill as a protected strand, and there really is no need to include harassment. The hon. Gentleman also asked why pregnancy and maternity were not protected against harassment, but if a woman was subjected to that, there would be harassment related to her sex in any case, so there is no need to cover it in this provision. I hope that those two side points have been dealt with.

I shall now discuss amendment 38 as its reach is smaller and it is the most easily dealt with. As the hon. Member for Glasgow, East has said, British discrimination law contains a harassment provision. To show harassment, a person must show either that their dignity has been violated by unwanted conduct or that an intimidating, hostile, degrading or offensive environment has been created as a result of something. It is either/or—the disjunctive approach. By contrast, the definition in European equal treatment directives requires both limbs—the conjunctive approach.

It is difficult to see how the two concepts differ in practice. Conduct that violates somebody’s dignity will almost always create an offensive environment for that person. Therefore, if there is an extension by our treatment of those two limbs as disjunctive, we regard that as a small extension. That is the first point. The point that I rehearsed with the hon. Member for Oxford, West and Abingdon in an intervention is that our disjunctive approach, which is arguably a touch broader, was introduced to law as long ago as 2000 when the Race Relations Act 1976 was amended to implement the relevant European directive. He gave another example of a different branch of equality law where that disjunctive approach was present.

To use the conjunctive approach—the European approach, which is perhaps slightly narrower—would be regression. We would be going back from what we have already done and we are not allowed to do that under the principle of non-regression. That is another reason why we cannot implement the proposal.