Dr. Harris: May I give the Minister the opportunity to respond, if she can, to the point that I raised on subsection (4) about the explanation for that exclusion? I feel that that would be best dealt with in this group of amendments, rather than in a stand part debate. If she is able to do that now, I would be grateful, but I understand if she is not, and she may be able to come back to it in an intervention.
The Solicitor-General: I will return to that point in the clause stand part debate if we have one. However, I do not know what your view will be by the time that we get to the end of the many amendments, Lady Winterton. I will either do that now or I will write to the hon. Gentleman, but I shall let him know.
Dr. Harris: That is fine. I am grateful to the Minister for giving a full explanation of the Governments position. I accept that when there is a new provision, it is worth putting into statute. I accept that this is not a new interpretation of the law, but I believe that just because it is not new is not a reason for including it if there are other reasons. I know that that was not the main part of her case, and I am pleased that she recognised the argument for including the provision in the interests of transparency, especially since she felt strongly about the because of provision, where the case is somewhat less strong.
The Solicitor-General: A moment ago, the hon. Gentleman made a point about subsection (4). Association and perception discrimination have never been covered in marriage and civil partnership provisions before, because there was never any evidence of need, so we have just carried forward the existing protection to the Bill.
Dr. Harris: That is useful in that narrow area, because I suspect that it will be raised by the Joint Committee on Human Rights, and it and others can reflect on that answer to see whether a case can be proposed for the exclusion. The logic is that other areas are included because there is evidence of a problem. I will not push that now, but it seems peculiar that, historically, there should have been such non-coverage, even if there was no evidence of harm, because it just sticks out. I shall have to reflect and seek advice.
The Solicitor-General: The hon. Gentleman will probably remember that I said this morning that the consultation showed almost an argument for discontinuing this protected characteristic completely, because there is so little evidence that it causes difficulty. As I understand it, there is absolutely no evidence that association and perception add to the almost non-existent difficulty that it causes. It is right at the bottom of everyones scale.
Dr. Harris: I accept that. I am on the record as saying that legislation should prioritise dealing with mischief, which is why I raised the issue of sexual orientation discrimination in religious organisations. It is not part of my mission to seek out areas that are not covered for the sake of it. However, I will reflect on that.
To return to the Ministers reasoning, she was concerned that it is important to not inadvertently narrow the ambit of direct discrimination by a misplaced amendment that seeks to clarify. I understand that, although we have not seenI am not inviting her to do so nowany direct criticism of the amendment that I have provided or such an amendment that might do that. However, I recognise that that is sometimes a good reason for not providing greater explanation within statute.
We come to the Ministers core reason, which is the concern that including something might imply that other grounds are covered by direct discrimination. I was grateful to her for the information that she provided about the other sorts of things that are covered, such as detrimental treatment on the basis of a refusal to discriminate. The danger of including some parts of the definition might, by extension, imply that the others are not covered, and I need to reflect on what she has said about that. One could say that, if there is a good argument for including the measures in the Bill, she is still able to say and make clear that their mere inclusion does not in any way detract from existing protections covered by discrimination.
On balance, I am not persuaded that there is still a good reason to include such matters, but it is important that the organisations that I cited read the Ministers words carefully to see whether they are persuaded by her. On that basis, I think it wise for us all to go away and reflect on what she has said. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lynne Featherstone: I beg to move amendment 133, in clause 13, page 9, line 10, leave out subsection (3) and insert
(3) If the protected characteristic is disability, nothing in this section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of a disabled persons disability..
An amendment to retain the asymmetric nature of disability discrimination.
This is a familiar discussion about disability and direct discrimination. It is asymmetric and therefore we perhaps have to treat those with disabilities more favourably to bring about an equal outcome, because disability is different from the other protected characteristics in that sense.
The amendment would allow duty holders to treat disabled people more favourably where that is necessary to meet their needs. The reason for the amendment is that the current wording in subsection (3) could lead to
An employer might need to provide additional adaptations to ensure that someone with disabilities can do their job, and that might be something that would not be available to someone who is not disabled. In effect, the person with a disability would receive more favourable treatment than a colleague who is not disabled. The goal, as I said, is an equal outcome.
I believe that the Conservatives have tabled a similar amendment to the clauses on indirect discrimination. The problem with clause 13(3) as currently drafted is that, according to explanatory note 74, it is apparently intended to ensure that
in relation to disability it is not discrimination to treat a disabled person more favourably than a person who is not disabled.
The Disability Charities Consortium, which supports the amendment, is concerned that such drafting might not achieve that intention and might have unintended consequences, because the current drafting does not explicitly refer to more favourable treatment, which is such an integral part of disability discrimination law. It refers only to treating people
in a way which is permitted by or under this Act.
The DCC is concerned that that leads to a lack of clarity and that the hard-fought-for key principle of more favourable treatment should be made explicit in the Bill.
For the avoidance of doubt and to be absolutely clear that it is within the law to treat those with a disability more favourably, the amendment is unequivocal. It would replace the wording with a very simple statement that would ensure that the meaning of the Bill, which is to allow more favourable treatment for those with disabilities, could not be thwarted. It would ensure that there is no regression from the very important current protection from discrimination that disabled people have, and it would be clearer for those who need to be sure of what they are doing, whether they employers, service providers, statutory authorities and any others who may be affected. Under the legislation, they must be certain that they may treat people with disabilities more favourably. I am sure that everyone in this room will agree with the principle, but the argument is about the wording. How the Minister responds will be helpful to the courts.
Mr. Harper: Again, I shall be very brief. I have some sympathy with the hon. Ladys concerns. We are looking for the Minister to do two things. First, we want her to be clear about the effect of the language in the Bill. The explanatory note is clear, but we want the Bill to be clear. Secondlythis goes to part of what the DCC is talking aboutwill she say a word or two about the guidance either from the Department or the EHRC? We want to be clear about what will be in the Act, but the guidance should be explicit for those who have to use, implement and understand the law, and the intention behind the law should be clear. That would be helpful.
A number of amendments have been intended to make the language in the Bill clear. There are two parts to that. First, we would like the Minister to comment on the legal effect of the Bill. Secondly, we hope that the text that the EHRC produces once the Bill is enacted will be more readable. That is critical, as it will be used by the man in the street and business organisations. The Minister could well reassure the Committee on those two points.
The Solicitor-General: The amendment would make the intent of clause 13(3) clearer. Our intention is to import into the Bill directly the asymmetric nature of the protection that Disability Discrimination Act 1995 gives to disabled people. That has always been our intention; it continues to be our intention, and there is no regression.
As has been pointed out, we say in the explanatory notes that
it is not discrimination to treat a disabled person more favourably than a person who is not disabled.
That could not be clearer or more unambiguous. However, clause 13(3) could be clearer and less ambiguous, and we do not think that we have achieved the same transparency in drafting the clause as we have attained in the explanatory notes.
We heard from the disability charities in the evidence-taking sessions. They were worried that the clause was not clear enough. There is absolutely no disagreement about what we are doing in Committee, so we would like to invite the hon. Lady to withdraw the amendment on the clear understanding that we are talking to the disability charities with every intention of attempting to clarify clause 13(3) in some better way. We have a target of doing so on Report if possible.
Lynne Featherstone: I thank the Minister for that very helpful response and clear commitment to what we all intend for this part of the Bill, and I am delighted that she will be working with the DCC to find a clear wording. On that basis, I am more than happy to beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
(5A) If the protected characteristic is religion or belief, for the purposes of this section, a claim for direct discrimination on that protected ground can not solely rely on A treating B less favourably on the basis of a manifestation of Bs religion or belief..
This is to make explicit in statute existing case law from the Employment Appeal Tribunal in Ladele vs Islington, that one can not claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.
The Chairman: With this it will be convenient to discuss the following: amendment 36, in clause 13, page 9, line 22, at end insert
(b) less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief..
Makes clear that treating religious speech less favourably than non-religious speech is a form of direct discrimination.
New clause 3Freedom of religious speech
A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency..
Imitates the wording of guidelines issued by President Bill Clinton in 1997 to protect religious free speech in the federal workplace.
Dr. Harris: The amendment standing in my name and that of my hon. Friend the Member for Hornsey and Wood Green covers some quite complex areas of case law, and I will not be able to do it justice, partly because of time and partly because, when I finished reading the case that I found most useful, I had lost track of what was said at the beginning, so long and complex was the judgment. However, there are some juicy bits in it that make things clear.
The case also deals with the amendment and new clause tabled by the hon. Member for Glasgow, East. It is useful that we are having this debate, because there is a clear distinction in the position that I am taking, which seeks to probe the position in case law and the position taken by the hon. Gentleman in his amendment and new clause, which I think is wrong and inappropriate.
It is important to make clear what amendment 221 would do. If someone has a requirement in respect of work based on a manifestation of their religion, such as an unwillingness, inability or injunction not to work on a day of religious rest, or some requirements related to clothing, time for prayer or worship, I believe that they should have protection from discrimination when a criterion that prevents them accessing that right is not legitimate or proportionate to what it seeks to do. That is indirect discrimination.
I have supported a number of cases where religious individuals have been treated unfairly by another party. The Sikh bangle case is a good example. A young girl wanted to wear a bangle, but her school sought to prevent her from doing so. That was clearly indirect discrimination on the grounds of religion and belief. The court rightly reached the judgment that it was not justified under the terms of the test for indirect discrimination. I want to be absolutely clear about that.
I am seeking to debate the expectation that we will increasingly see some cases regarding discrimination on the grounds of a manifestation of religion brought to employment tribunals. I will refer to Ladele v. London borough of Islington, because it is a useful case, though not the only one. Suffering detriment on the basis of ones view that it is wrong that two people of the same sex should be joined together in a civil partnership is direct discrimination, where no justification is permitted. I hope that the Minister, who is wiser than me in such matters, can give helpful clarification that that is the case, even if she does not accept the amendment.
There are a load of similar cases before the tribunals at the moment. Many religious organisations see it as their right, as indeed it is, to test the issue in a series of different matters. It would be helpful if we could say, from the judgment of the Employment Appeal Tribunal in Ladele, which facts can be generalised to other caseswhich would we, as a Parliament, want to consider the general rule and intention?
Let me briefly rehearse the case. It involves a lady with clear Christian views, who at the time of the case was charged with providing civil partnership work as part of her job for Islington council. On the basis of her beliefs, which were genuinely and sincerely held, she did not want to conduct the ceremonies or do the registration. There is no doubt about the fact that it was considered essentially against Gods will and she did not want any part of it. However, she was pursuing a public function, and the effect of her position was that she wished the freedom in her role to discriminate against other people.
The Employment Appeal Tribunal overturned the judgment of first instance, and did so in quite stringent and critical terms. It ruled that there was no direct discrimination and that the indirect discrimination was clearly justified by the council on the basis of its seeking to prevent discrimination against gay people and to adhere to its own code of practice with regard to non-discrimination.
For illustration, I will refer to short segments of that judgment, as it goes to the heart of the amendment and is critical. In paragraph 70, Mr. Justice Elias, the president of the Employment Appeal Tribunal, cited the 2007 case of Azmi v. Kirklees metropolitan borough council, where a Muslim woman challenged a schools refusal to let her wear a hijab. That is a well known case in public policy, and it was debated in the House. Therefore, it is appropriate that we deal with it in the Bill.
The 2007 case said:
She was a language support teacher who provided such support for students with English as an additional language. The school adduced evidence before the Employment Tribunal to show that language support was more effective when the teachers face was visible. It refused her request for that reason. Her claim for direct discrimination failed. (The Tribunal considered that there was clearly prima facie indirect discrimination, although it was justified on the facts.). The reason the claimant wished to wear the hijab was her religious belief; the reason she was not allowed to do so was because it interfered with her effectiveness as a teacher.
The motive for the detriment was not her religious belief, but another motive. That is why my amendment makes clear that it will be difficult to adduce direct discrimination on the grounds of a manifestation of religious belief. That objective test will never be allowed.
The judge went on to cite the 2008 case of McClintock v. Department of Constitutional Affairs, where a magistrate alleged that he had been directly discriminated against for refusing to place children seeking adoption with same-sex couples. Again, the case was all over the newspapers and was raised during debate in this House. He said:
The Department insisted that he should apply the law in accordance with his judicial oath. The claim of direct discrimination failed before the Employment Tribunal and was not pursued before the EAT... The President commented that it was prudent not to pursue the issue; the evidence was that anyone who was not prepared to give effect to the judicial oath would have been similarly treated. His treatment was not because of his religious beliefs but because of his refusal to honour the oath. (In fact he was not able to establish that his objections were based on religious grounds in any event.)
That is a second key component: anyone who has that manifestation, whether it is based on religion or not, will be treated in the same way in cases such as this, whether it be by Islington council or the Department of Constitutional Affairs. It would be helpful if, during
|©Parliamentary copyright 2009||Prepared 17 June 2009|