Equality Bill [Lords]

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Dr. Harris: I would like the hon. Gentleman, also, to comment on the matter, if he thinks that it is appropriate. The question of skill is interesting, because the distinction applies only if a skill is involved, rather than in instances in which food is
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ordered from a wholesaler. In his view, does the clause fail to deal with the question whether a shop or chain of shops is discriminating if certain parts of the community feel that it could, if it chose, provide the food that they want by ordering it from somebody else, but it has chosen not to do so? Should it deal with that question at all? A similar question would apply to a school canteen that failed to provide for the dietary preferences of a certain religion although no skill, as defined here, was involved; it would simply have to order goods from a supplier. Would he care to comment?

Mr. Grieve: The hon. Gentleman goes to the heart of the matter. There is a twofold test. One part is to provide protection for somebody who says, “I have to do something in a particular way; that is my religion or belief.” In the case of halal butchery, it is questionable whether a Muslim has to kill sheep in a particular way because of his faith. The test is, rather, that a Muslim cannot eat meat that has not been killed in a particular way. That raises the interesting question of why paragraph (a) has to be there at all. It is arguable that a Muslim butcher is under no constraint to kill sheep in a particular way so long as the end product is not going to be eaten by Muslims.

On the second point, the hon. Gentleman is right: there is a clear implication that anybody who provides goods or services, such as an ordinary high street butcher, has to ask himself whether it is reasonably practicable for him to organise his business or skill so as to ensure that Muslims can buy meat from his shop. That is why I posed the question. Indeed, amendment No. 108 would remove the middle part of paragraph (b), so that it could also be a defence to say that one refuses to exercise the skill

    “in relation to or for the purposes”

of another religion. In a sense, that is the other side of the coin to paragraph (a). However, that is clearly not what the Government intend. We need to tease out from the Minister what the Government want.

Dr. Harris: This is a little complicated. I think that my question was on a different point from that being made by the hon. Gentleman. I shall not interfere with any exchange that the Minister may have planned to have on the matter, but I want to ask about the impact of the clause, and this is the time to do it. Would it become incumbent on a school canteen to provide particular types of food to children, or would a high street butcher have to provide certain types of meat to such a community? If it was straightforward for them to do so—if they could get it from another wholesaler and price it accordingly—would the clause make it incumbent on them to do so, or would they run a risk of being accused of committing a tort of discrimination under the clause if they chose not to do so? Skill is a separate issue. I am sure that my question was dealt with in another place, but it would be useful to the Committee for it to be clarified.

I know of a number of people who are concerned about how far they will have to go. I know that the question relates to previous provisions, but I would be grateful if the Minister clarified the point.

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Paul Goggins: It is worth making it clear at the outset that the skills involved in the preparation of food are different from the question whether a supermarket should provide particular goods or whether a particular school should provide a certain range of school meals. Supermarkets and schools will take decisions that relate to their customer base, the area that they seek to serve, the children on the school register and so on. However, if they refuse to provide certain goods or services when all the evidence suggests that they should do so, they could be at risk under other provisions of the Bill, but not under subsection (3), which has a narrow significance.

Subsection (3), which the hon. Member for Beaconsfield queried, recognises that in relation to some activities, most notably the preparation of food, some people operate in a particular way and with particular skills, in line with their religious doctrine. That is a serious issue, although my hon. Friends may have noticed I let forth a slight laugh earlier. The hon. Member for Beaconsfield said that this would doubtless be the halal butcher or kosher clause, and at that precise moment I read in my brief that the most obvious example would be kosher and halal butchers. That coincidence brought a smile to my lips. None the less, it is an interesting and serious issue. We certainly would not wish the clause to be used to force those butchers to change their practices for the benefit of other religions.

As always, the hon. Gentleman raises a point that is worthy of further reflection. I am happy to do that, not to ensure that the intention is right—I think that the hon. Gentleman shares our good intentions—but to check whether the wording delivers everything that we want. I want to satisfy myself that it does. I think it does, but I shall reflect further on the matter, and if we feel that the wording needs to be tightened, we will come forward with our thoughts in due course.

Dr. Harris: The Minister felt that the point that I raised about school canteens and high street butchers generally providing a service for the community might not be covered in subsection (3), but is it covered elsewhere in the clause? In other words, if a high street butcher operates in an area where there is a potential market, will he be forced to respond to that market? What is the threshold for schools before they will be expected to provide canteen meals for a particular community?

It seems to me that subsection (1) talks of discrimination against person B when the service in question is already being provided to the section of the public to which he belongs. I thought that I understood it, but now I am not sure. I would be grateful if the Minister made absolutely clear which part of the clause applies.

11.45 am

Paul Goggins: Sometimes in our debates, we all end up more confused than we were at the beginning. The important point is that we are trying to ensure that a person’s skills relating to religious observance and practice are not skewed in a particular way because of the wider interests of the community. We must respect
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those skills and traditions. In the same spirit in which I made an offer of further reflection to the hon. Member for Beaconsfield, I say to the hon. Member for Oxford, West and Abingdon that I am prepared to take this issue away and reflect further on it to ensure that we have got the wording right.

I am sure that the whole Committee regards the objective as important. We do not want someone with a particular skill or religious belief to be forced to subvert their practice or religious belief because of wider interests. We want to protect that, and they should not be accused of discrimination if they want to protect it. To be certain, I will reflect on the wording and, as I said, if further tightening of the wording is necessary, I will introduce further proposals in due course.

Mr. Grieve: I am grateful to the Minister for what he has said. I apologise to the Committee because the concepts in subsection (3) are not easy to explain and I may not have explained them as well as I had hoped. Paragraph (a) seems to give a complete let-out to someone who, being of a particular religious faith, requires that animals be slaughtered in a particular way. He can say, “I insist on doing it in that fashion because that is what my religion requires.” It seems to me that there is nothing in paragraph (a) to say that his position need be reasonable or not. For example, someone can say, “I am a Muslim. I run a small abattoir and I insist that all the animals that come through my abattoir are slaughtered in a way that is compatible with halal butchery.” That seems to be the end of the matter and that is the let-out.

When we come to paragraph (b), the concept of reasonableness suddenly creeps in. That is what alerted me to the oddity of the two paragraphs together. I shall explain what paragraph (b) seems to be saying. Let us suppose that someone came along and said, for example, to a non-Muslim local meat supplier running a small abattoir that it would be useful if halal meat could be supplied to the town that the supplier served. If they said, “It’s true that my religion or belief does not insist on humane killing, but nevertheless my belief as a Christian is that animals should be made to suffer as little as possible, so I want all my animals to be pre-stunned,” the argument might be, “You’re not being reasonable.” That is why I have anxieties about the way in which the two paragraphs are linked.

Paul Goggins: Just occasionally, some things become clearer during deliberations in Committee. It is true that there is a test of reasonableness in paragraph (b), but the reasonableness relates to the practicality of exercising the skill. For example, if the meat were to be cut in a very restricted place, it might be impractical to serve the wider interests of other, non-Muslim, potential customers of the business. That may be a practical reason that prevents the service from being provided, which would be perfectly reasonable. The reasonableness test relates not to the
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exercise of the skill but to the practicality of exercising the skill. That is my understanding, but I will continue to reflect on the matter.

Mr. Grieve: I understand that, but the measure could be used as a lever to force people who may not have strong religious beliefs or any religious beliefs to conform to the views of those who do have a strong religious belief, because it would simply be said, “Well, there is no practical reason why you can’t provide these people with goods and services, namely meat, in the form that they want.” Unless a person could say, “Actually, it is religious scruple that prevents me from doing so, because I insist, on religious grounds, that I must slaughter my meat in a particular way,” they could be required to do it. The impact of the measure would be to force those who ran abattoirs and who had no religious beliefs to provide halal meat even though they might have scruples or anxieties about it and did not particularly want to do it.

As the Minister will know, the question of halal and, indeed, kosher food is controversial. I believe fundamentally—this is my personal view—that it must be allowed, because it covers a religious matter, but if someone were to ask me whether it is better for animals to be pre-stunned or to have their throats cut I should not have the slightest hesitation in saying that I prefer them to be pre-stunned. I detect in the subsection a slight twist against people, which worries me, to force them to provide goods and services in a way that they might not want to do. Not having any strong religious views, they would be told that they had to do so, because it would be unreasonable not to.

That is what I think is wrong and that is why I tabled an amendment to make it clear that reasonableness did not enter into the matter at all. I hope that the Minister will think about that. There is something fundamentally wrong in telling people, “Because there are Jews or Muslims or any other group in society who require some goods or services in a particular way, you, not having any strong religious views on the subject, should be compelled to provide them.” That is a potentially objectionable aspect of the subsection.

Dr. Harris: I am grateful to the Minister for agreeing to consider my point. The question I am raising does not relate to the issue of the skill but is a general question: will high street butchers or supermarkets be expected to provide to people who want them certain services that would, potentially and practicably, be available if commercial businesses chose to go into the market? If they do not do so, will they run a risk of being held to have discriminated under the clause? It would be helpful if the Minister could clarify that at some point. I suspect that the clause does not force commercial decisions on commercial organisations, but it is not all that easy to tell.

Question put and agreed to.

Clause 45 ordered to stand part of the Bill.

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Clause 46


Question proposed, That the clause stand part of the Bill.

Dr. Harris: I invite the Minister to clarify what subsection (3) means in plain English. It states:

    “It is unlawful for a person to discriminate against another by refusing permission for the disposal of premises to him.”

That is not subject to an exception under clause 47. I presume that it will prevent discrimination in the selling of a property or—and this is what I wanted to check—the renting of a property where the landlord is not living. I raise the point with particular reference to an advertisement that the Minister may be aware of, which attracted some controversy. I think that it was in a Catholic newspaper, and offered a tenancy only to Catholics. That received some attention, about 18 months ago, on the question whether it constituted the sort of discrimination that would not be permitted any more. It is clear that it is caught by the clause and it is not the subject of any exceptions under clause 47(1).

Paul Goggins: I hesitate to comment on the specific example that the hon. Gentleman gave without knowing a little more of the detail. If he has a copy of the advertisement, I would be more than happy to have a look at it and give him my considered view.

Very briefly, subsection (3) relates to a situation in which a person’s permission is required for the disposal of someone else’s interest in a property. Typically, that would be the executor of a will. Where that permission is required for the disposal of premises, to withhold that permission on the grounds of religion or belief would be discriminatory. The provision seeks to rule out such behaviour.

Dr. Harris: The Minister answered my question in legal terms—I am not surprised about that. He talked about an executor. I am asking whether subsection (3) covers the disposal of premises—I do not know whether “disposal” is a particular term that relates only to probate matters—when a property is just sold to another person, or someone who is not living on the premises rents the property to another person. What is the difference between subsection (3) and subsection (1)? I guess that it is to do with refusing permission. If the Minister could clarify the meaning of that in normal life, I would be grateful. If I have not made my question clear, I would be happy to discuss it with him outside the Committee, if that would be convenient to the Committee.

Paul Goggins: I am always happy to pursue discussions outside the Committee as well as inside it, but I think that the hon. Gentleman is on to something when he highlights the words “refusing permission”. That is the key thing that the provision seeks to capture. The obvious example is the executor of a will because their permission would be required before a particular property could be disposed of. The hon. Gentleman may be able to think of other circumstances in which that occurs. The executor of a will would be the most common case. We want to
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ensure that nobody can stop a sale on the grounds of religion or belief in those circumstances. As I said, I am happy to discuss the matter further outside the Committee if he wishes.

Question put and agreed to.

Clause 46 ordered to stand part of the Bill.

Clause 47

Section 46: exceptions

Paul Goggins: I beg to move amendment No. 14, in clause 47, page 28, line 36, leave out ‘46(1), (2) and (5)’ and insert ‘46’.

The Chairman: With this it will be convenient to discuss the following: Amendment No. 109, in clause 47, page 28, line 36, leave out ‘(5)’ and insert ‘(3)’.

Government amendments Nos. 15 to 19.

Paul Goggins: This is a rare opportunity for me to go first in a debate. Amendments Nos. 14 and 15 stand in the name of my hon. Friend the Minister for Women and Equality. They are minor technical amendments that correct a printing error in the numbering of the clause arising from the removal of the provisions in clause 46 which previously made harassment in the provision of premises unlawful. Amendments Nos. 16 to 19 remove the remaining references to harassment from the immigration exception in clause 51(4). Amendment No. 109, in the name of the hon. Member for Beaconsfield, has exactly the same effect as amendment No. 14—great minds think alike.

Members of the Committee will be aware that the provisions that would have protected people from harassment on the grounds of their religion or belief were removed from the Bill on Third Reading in the other place. These amendments simply complete that process. Amendments Nos. 16 to 19 should not, however, be taken to mean that we support the removal of the harassment provisions from the Bill. We believe that it is wrong and that it should be unlawful for those carrying out public functions or running premises to harass people because of their religion or belief. My noble Friend Baroness Scotland was very clear in the other place that we do not want to see immigration officers, prison officers, landlords and others harassing people on the grounds of religion. There was wide agreement on that principle, although unfortunately not on the wording or the detail of our proposals.

My hon. Friend the Minister for Women and Equality made it clear on Second Reading that we remain convinced of the need to act against harassment on the grounds of religion or belief and that we will consider the question of harassment further as part of the discrimination law review. At this stage, I simply commend these minor technical amendments to the Committee and invite the hon. Member for Beaconsfield not to press amendment No. 109.

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12 noon

Mr. Grieve: I am happy to hear what the Minister has to say, and I will not press amendment No. 109. I am glad that we were thinking alike. It is my practice to read the text of a Bill and table my own amendments before I read anyone else’s. That is why it features. If I had noticed what the Minister had done, I would not have tabled it.

Amendment agreed to.

Amendment made: No. 15, in clause 47, page 29, line 11, leave out ‘(5)’ and insert ‘(3)’.—[Paul Goggins.]

Clause 47, as amended, ordered to stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Clause 49

Section 48: exceptions

Dr. Harris: I beg to move amendment No. 154, in clause 49, page 30, line 11, leave out ‘(1)’ and insert

    ‘(1) (a), (1) (b), (1) (c) (i) and (1) (c) (ii)’.

The Chairman: With this it will be convenient to discuss the following amendments:

No. 153, in clause 49, page 30, line 31, leave out ‘or (iv)’.

No. 155, in clause 49, page 30, line 33, after ‘curriculum’, insert

    ‘in relation to religious instruction or religious education’.

Dr. Harris: I am grateful for the opportunity to introduce this group of substantive amendments. I knew that I could rely on the hon. Member for Beaconsfield to subject other clauses to the forensic examination that they require. Indeed I saw him drafting his amendments in Committee, while also paying great attention to proceedings and intervening, which is a skill that I have yet to learn. This is an important group of amendments, and I hope that I can make some progress with the intention behind them, if not necessarily being able to change the drafting today.

Clause 48 (1) reads:

    “It is unlawful for the responsible body of an educational establishment . . . to discriminate against a person—

      (a)   in the terms on which it offers to admit him as a pupil,

      (b)   by refusing to accept an application to admit him as a pupil, or

      (c)   where he is a pupil of the establishment—

      (i)   in the way in which it affords him access to any benefit, facility or service,

      (ii)   by refusing him access to a benefit, facility or service,

      (iii)   by excluding him from the establishment, or

      (iv)   by subjecting him to any other detriment.”

Clause 49 exempts certain schools from those general provisions not to discriminate. The current wording of clause 49(1) states that the whole of clause 48(1) shall not apply in relation to a list of various schools, which I shall abbreviate to “faith schools”. I hope that the Committee will bear with me, as the category is perhaps a little more complex and wider
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than that. Clause 49(2) creates an exemption in respect of some of the provisions that I have just quoted in relation to the content of the curriculum or acts of worship, which I think are taken to be acts of worship organised by the school or educational establishment itself following an amendment to clarify that in the House of Lords.

There is a strong case for saying that those exemptions go too wide. They go beyond what is required to maintain the character of faith schools—that is the term that is used—and it would be better if they were drawn more narrowly to prevent breaches of human rights and occasions of discrimination. There is no good reason why these provisions need to be drawn so widely. Things would be somewhat easier if clear guidance—preferably statutory guidance; I suspect that we will come on to guidance questions later—as to how schools should operate in this respect were provided for all schools, to help them to stay within the Human Rights Act 1998 and avoid discrimination. It would be easier if there were any guidance in this respect—or, indeed, if there were ways to ensure that the Government were being vigilant about unreasonable discrimination, or discrimination that could not be objectively justified.

It is quite difficult for pupils and/or their parents to bring actions. Pupils are just trying to get on with being in school. Therefore, the onus in drafting legislation is to ensure that as there is such a big discrepancy between the power of the school authorities and that of the pupil, great care is taken about discrimination.

My amendments seek to narrow the provision. If we are to have discrimination in admissions on religious grounds, which is a subject for debate another day—we ought to debate it, although we do not do that very well in this House—the exception for subsection (1)(a) of clause 48 should be kept in respect of faith schools, as should the one for subsection (1)(b), which deals with refusing to accept an application, but two provisions should be removed from subsection (1)(c):

      “(iii)   by excluding him from the establishment, or

      (iv)   by subjecting him to any other detriment.”

I shall deal with each of those in turn.

Making an exemption from the general duty of discrimination not to expel someone or exclude them on the basis of their religion raises serious issues. Some pupils may decide that they want to change their beliefs while a pupil of a school. I am speaking generally. It is easier in this context to discuss a publicly funded school carrying out a public duty that admits someone on the basis that they are, say, a Catholic. If that person then states that they do not, in fact, subscribe to those religious views and that they must have the freedom to make up their own mind, as indeed must their parents, is it right that they could be excluded or expelled on the basis that they no longer complied with the religious requirement for admission? I do not understand how it would be made clear to both parties that that would not be permitted, but to deprive someone of their education in such an establishment simply on the basis of their changing or losing their religion seems not to be objectively justified.

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I do not believe that that would necessarily be a frequent occurrence. One of the arguments about the appropriateness or otherwise of faith schools involves the question of how many children have particularly deep religious beliefs or affiliations. Clearly some do, as do their parents, but that is the sort of thing that we would expect our state education to provide for, so that children feel free and not encumbered by a requirement to change their religion or how they observe it.

The second way in which amendment No. 154 seeks to narrow the exception for faith schools concerns the

    “subjecting him to any other detriment”

provision. I am not the only person who believes that that goes too wide. I refer the Committee to the 16th report of Session 2004–05 of the Joint Committee on Human Rights, on the Equality Bill. The report is on the previous Bill in the previous Committee, in the form of Bill 72, which came before the House of Commons. The Joint Committee states in paragraph 49:

    “The Bill’s legitimisation of such activity may fail to satisfy the positive obligation, in particular under Article 8 ECHR, to take steps, including adequate legislative provision, to prevent breaches of Convention rights.”

The Joint Committee then makes the following recommendation:

    “Whilst we accept that certain differences in treatment on the basis of religion are likely to be justified in the interests of maintaining the character of faith schools and protection of the Article 9 rights of religious bodies, we do not accept that all of the discriminatory treatment which would be permitted under clause 52(1)—

that is clause 49(1) of this Bill—

    “including measures imposing ‘any other detriment’ on a pupil because of their religion or belief, could be so justified.”

That report was produced towards the tail end of the last Parliament, so there was not a Government response to it, and because the House of Lords was so busy dealing with the issue of harassment—rightly so, and the Government took the decision to solve that debate by taking it out of the Bill—we have not had sufficiently detailed scrutiny in the House of Lords of the Government’s response to that clear recommendation of the Committee as it was then formed.

Amendment No. 153 is analogous, and seeks to amend clause 49(2), which relates to the exemption given from responsibilities under section 48 to anything done under the content of the curriculum or acts of worship. Already, the Government have seen that it is appropriate to exclude the exclusion provision from the exemption, so that schools will not be able to rely on clause 48(1)(c)(iii) to exclude anyone from the establishment

    “in relation to anything done in connection with . . . the content of the curriculum, or . . . acts of worship”.

I am arguing again that subjecting a pupil to any other detriment on the basis of the content of the curriculum or acts of worship would also be inappropriate. It is not necessary, and runs the risk of making schools believe that they can discriminate disproportionately and in a manner that is not objectively justified. Rather than relying on case law, or long arguments about any guidance that might be
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produced, we should seek to have narrow exemptions in that area, when talking about publicly funded bodies that carry out public functions.

Amendment No. 155 seeks to probe why, in clause 49(2)(a), the Government talk about the content about the curriculum generally, rather than just

    “in relation to religious restriction or religious education”.

I hope that the amendment that I have tabled inserts that phrase after “curriculum” and before “or”—it is not in the marked-up version of the Bill from which I am reading—because it is in the religious instruction and education parts of the curriculum that a school might seek to say that it was going to teach and have certain emphases on certain religions, and that that might apply generally, or in particular to faith schools. That is a matter for the curriculum, but in relation to other parts of the curriculum, the Government will have to explain why they seek provision for subjecting someone to any other detriment, and not just refusing access to a benefit, facility or service, or for discriminating in the way in which they afford any pupil access to any benefit, facility or service covered by clause 48(1)(c)(i) and (ii).

Those are serious matters, which are subject to a recommendation from the Joint Committee On Human Rights. The Minister and his colleague the Minister for Women and Equality paid due attention to the concerns of that Committee about the Bill. That is right, as the Bill will set up the Commission for Equality and Human Rights—something on which the Joint Committee has a particular focus. I would be grateful if the Minister could provide some reassurance about the points that I have raised.

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