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 Government’s 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 everyone’s
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 Minister’s 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 seen—I am not inviting her
to do so now—any 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 Minister’s 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 Minister’s 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 person’s
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
confusion, and it is not as explicit as the Disability Charities
Consortium would wish. The key principle is that achieving equality for
someone who is disabled requires, as I said, more favourable treatment.
That principle is enshrined in the reasonable adjustment duty that is
right at the heart of current disability discrimination law. 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. Lady’s 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. Secondly—this goes to part of what the DCC
is talking about—will 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.
Dr.
Harris: I beg to move amendment 221, in
clause 13, page 9, line 20, at
end insert— ‘(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 B’s 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
3—Freedom 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. 5.30
pm 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
one’s 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 cases—which
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 God’s 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 school’s 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 teacher’s 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
our deliberations, the Committee made it clear to people that they
should not pursue that line of argument in employment
tribunals. | 
