Equality Bill

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Mr. Harper: The hon. Lady is making a point about creating a differential. The provision is carried forward from the existing law. I was interested in the proposed amendments, so I went back to the look at the Sex Discrimination Act 1975. Some of the language in that Act seems rather strange now. The Solicitor-General will correct me if I am wrong, but the clear intention of that measure was to protect married women who may be discriminated against, specifically in an employment field because employers felt that they were not sufficiently committed. Employers might, for example, discriminate because they thought that women were going to have children. That was why the measure was introduced. The Solicitor-General was saying that the evidence today is that such discrimination does not exist widely if it exists at all. However, the decision on introducing the provision was finely balanced. The hon. Member for Hornsey and Wood Green raised an important issue, but it shows how the world has changed since some of the provisions were introduced. It is not a new provision, but simply one that exists in law and is being carried forward.
Lynne Featherstone: I thank the hon. Gentleman for his intervention. It is therefore interesting to ask this question: if the intention of the original Act was to prevent discrimination against women because they were married, why is there not more evidence of such discrimination? I am surprised that there is not more evidence. For example, Nicola Brewer, the outgoing chief executive of the Equality and Human Rights Commission, has said that married women were being discriminated against before they were even employed, because maternity packages were reckoned to be so good.
The Solicitor-General: A person can get pregnant without being married, so is that not discrimination on the basis of sex? That is very adequate coverage. May I tell the hon. Lady that the only bit of evidence that we could find of prejudice or discrimination at all was one case that showed that there were instances of discrimination when an employer did not allow married people to work together, because that might interfere with their commitment to the business? That is the only example we could find.
Lynne Featherstone: It is a bit like not being able to go out with or date people in the same office, which often happens.
John Mason (Glasgow, East) (SNP): The hon. Lady was looking for examples. Some years ago, I wanted to visit a Scottish island, but there was no bed and breakfast accommodation for single people whatever—I suppose because the establishments only had twin or double rooms. I accepted that because it was a commercial decision. They are quite small establishments and they cannot cater for everybody, so I did not feel discriminated against, but is that an example of such discrimination?
Lynne Featherstone: When I was preparing for the debate on this amendment, I wondered whether those sorts of issues would be dealt with in this part of the Bill, but I was unsure whether marketing and sales was a legitimate or justifiable way to go. There is an unfairness in people having to pay a single supplement when they take a single room in a hotel and a whole raft of similar things. What is the Solicitor-General’s view?
The Solicitor-General: That is not about marital status, but about going on holiday alone, which is a difficult strand of discrimination to protect someone against. We are having a whip-round now to buy the hon. Member for Glasgow, East a tent.
Lynne Featherstone: I came to the same conclusion, which is why I did not use such an example as an argument. It makes me slightly uneasy to leave a differential in relationship status in a Bill that is meant to bring things together, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 8 ordered to stand part of the Bill.

Clause 9

Question proposed, That the clause stand part of the Bill.
Dr. Harris: I wish to raise two issues. First, the fact that the Bill clearly extends the provisions to colour or nationality is to be noted and welcomed. Secondly, however, why have the Government chosen not to go down the path of including the question of descent? As I understand it, the provisions in the original directive enable the Government, if they so choose, to talk about discrimination on the grounds of descent as part of racial discrimination. It is not clear whether the Government have not taken that course for a specific reason or whether they think that it is already covered.
There are questions about whether we have sufficient coverage of discrimination if the specifics of racial discrimination, including that on the basis of someone’s descent, are not covered. There is clearly an overlap into issues of genetics and so on, and questions about caste discrimination would come under that. It would be helpful if the Minister clarified the Government’s position. This is a significant clause on race discrimination.
11.45 am
The Solicitor-General: The hon. Gentleman suggested that this is an extension, but I am not sure why he thinks that that is the case. It troubles me, and I would be grateful if he would set his case out further. This is not an extension of the definition; we have covered discrimination on the basis of colour for a long time. All four of the limbs—colour, nationality, ethnic and national origin—are there, and always have been. I need to understand what he thinks has been extended, so that I can answer him appropriately.
Dr. Harris: I am looking at my briefing again. As I understand it, because the regulations with respect to the EU race discrimination directive were introduced under section 2 of the European Communities Act 1972, they could not go further than the provisions of the directive. Therefore, when they were originally introduced, the new regulations could not cover race discrimination complaints brought on the grounds of colour and nationality. That means that for the new definitions of indirect discrimination and harassment, the shift in the burden of proof relating to the genuine occupational requirement exception will apply only to discrimination on grounds of race, ethnic or national origin, and not to colour or nationality.
That was the previous position as I understood it, but I thought that it had been dealt with effectively in primary legislation. There was primary legislation, and the Government were not restricted—as they had been—to implementing that directive through secondary legislation. I hope that my understanding is correct—if it is not, I will apologise.
The Solicitor-General: The hon. Gentleman suggests that we have not outlawed discrimination on the basis of colour before today, which is an outrageous and bonkers suggestion. The briefing—which I think the hon. Gentleman needs to read again—states that we have changed where the burden of proof lies. The directive separated colour and nationality from ethnic or national origin, and put the burden of proof in tribunal proceedings on one side for one group, and on the other side for another group. Discrimination on the basis of colour and nationality, as the hon. Gentleman knows, has been outlawed in this country for a generation. There is no extension in the definition, which is what we are talking about. When we come to talk about the burden of proof, I will explain to the hon. Gentleman how it has been extended. The definition has not changed.
Dr. Harris: I was not proposing a probing amendment or talking about the definition. I do not see why the Minister should consider it bonkers and misunderstand my point, which is that the Bill fully extends that protection in other areas, which previously we were not able to do. I return to my main point about whether the Government have a view on the question of descent being part of the definition of race.
The Solicitor-General: It is extraordinary that somebody who appears to focus so closely on some arcane points of discrimination law can suggest that this is an extension of cover in clause 9. It is not. It is carried forward from the old legislation. I am very surprised. However, to look at another issue, in our view descent is likely to be part of ethnic or national origin. In due course, we will get to the meat of the hon. Gentleman’s briefing note, and he will need to find it again later in the Bill.
Dr. Harris: I am disappointed that the Minister refuses to answer the question and resorts to a delaying tactic of criticism and abuse. That is not necessary in a Committee where, so far, we have had effective scrutiny and a good dialogue. She may see it as an opportunity to show-boat and grandstand her great expertise, and we recognise her experience as a lawyer. The question that I urge the Minister to address is for what reason have the Government chosen not to include descent in the definition of race under the clause? Does she think that it is adequately protected otherwise? Is not extending the clause in that way a policy decision made by the Minister, whose responsibility is to steer the Bill through the Committee?
The Solicitor-General: I have already answered that question.
Dr. Harris: On a point of order, Mr. Benton. the Minister says from a sedentary position that she has answered it.
The Chairman: The Minister contends that she has answered the question. Does the hon. Gentleman have a further question?
Dr. Harris: We will have to look at the record to see whether the point that I raised twice has been answered. That means that we may have to come back to it at a later point. Clearly, however, there is nothing more that I can do to elicit an answer on that point.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.

Clause 10

Religion or belief
Dr. Harris: I beg to move amendment 215, in clause 10, page 7, line 23, at end insert—
‘(4) The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.’.
This is to make sure that organisations or individuals can not use exemptions based on religion or belief to discriminate on another ground for example against persons whose lifestyle, because they are gay or unmarried, is not consistent with orthodox practice of that religion or belief.
The Chairman: With this it will be convenient to discuss amendment 216, in clause 10, page 7, line 23, at end insert—
‘(4) The meaning of religion or belief does not include the degree of support for matters of public policy or for the policies of a political party.’.
This is to make sure that organisations or individuals which are quasi-political can not benefit from exemptions based on religion or belief.
Dr. Harris: The amendments cover different issues. They seek to probe the extent to which the Government agree with the case law that has emerged. Amendment 215 would clarify that
“The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.”
There are two other amendments on the amendment paper, which were not tabled in time to be selected. They put it in better terms, and are in relation to the protected characteristic of religion or belief, so that a reference to a person’s religion or belief would not include reference to that person’s other protected characteristics.
The point about the amendment is to question whether the Government agree that it is not acceptable for people to seek to use the opportunity, which exists rightly, to discriminate on the grounds of religion in certain matters such as employment where certain conditions are met, on the basis that a criterion is set for religion, which is not met in the definition of religion, because someone is gay, or, less directly—although I think it goes to the heart of what one’s sexual orientation is—because someone is having sexual relations outside marriage. For example, someone may be having sex with someone of the same gender and, by definition, that will always be sex outside marriage.
We have had assertions from people representing religious organisations that they should be entitled to discriminate on the basis of sexual orientation, although they point out that it is not on the basis of the fact that a person is attracted to someone of the same gender, but on the basis that they act on that attraction and are engaged in otherwise lawful sexual relationships with someone of the same gender.
In case law, we have had a number of judges who were very clear.
Mr. Harper: I am not trying to pick on the hon. Gentleman, but he said that amendment 215 was not as brilliantly drafted as it might have been. I sat here, wishing to stop him before he got on to the specifics. Amendment 215 says:
“The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.”
It may be that I am particularly dense, but I do not have the faintest idea what it means. Perhaps other members of the Committee do not either. Will the hon. Gentleman explain what he is getting at?
Dr. Harris: I was going to through the example that I gave. It may be argued by some people that someone cannot be of the religion, criteria having been set on that, if they are gay. That is basically what I am saying. For example, there is a provision in the Bill, which I think we all support, whereby a religious test could be required for some employment. The definition of religion is given in the Bill. Prospective and actual employers might be under the impression that they can say, “This person does not practise the right sort of religion.” I do not want to name any particular religions, because it gets invidious, but I fear that I may have to.
Let us take Catholicism as an example—I do not say that this occurs, but one can see how it might. Such an employer would say that someone has to be a Catholic in order to work for them. That person might indeed be a Catholic but, if they are gay, it could be the view of the employer that they do not fulfil a religious criterion because orthodoxy in that religion—Catholicism might not be a good example—cannot include someone who is gay or, more frequently, expresses a sexual orientation that by definition leads them to be outside the religion. An amendment that we will come to later deals with that. So a potential employer will say, as they have in briefings to this Committee, that they do not seek to discriminate against people who are gay, but that they want to be able to discriminate against people who have gay sex.
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