Mr.
Harper: The hon. Gentleman highlights an important issue,
which the Minister could comment on when she responds, based on what
the Employment Appeal Tribunal said. Notwithstanding its ruling, it
made the point that some of the council management had not treated Ms
Ladele properly. Where there are conflicting rights, one solution might
be for the Equalities and Human Rights Commission guidance to advise
employers and other organisations on how to behave and on possible
steps to take to deal with employees sensitively. Rather than turning
into divisive court cases, matters could be resolved internally within
an organisation, with some give and take on the part of the
organisation and the individual. That might be a proper subject for
guidance. Will the Minister reflect and comment on that in her
response?
6
pm
John
Mason: I thank the hon. Gentleman for his intervention; he
makes a very good point that we have touched on before: should there be
some kind of purpose clause or something else dealing with conflicting
rights? It is clear to the Committee that such situations have arisen
in the past and could do so again.
Miss Ladele
is taking her case to the Court of the Appeal, and some lawyers believe
that the Employment Appeal Tribunal ruling is so extreme in its
dismissal of manifestations of religious belief that she is likely to
win—we shall see. Enshrining the EAT ruling in legislation as
suggested by amendment 221 is therefore a bit premature. I was slightly
taken aback by the explanatory note to the amendment, which states that
its goal is to ensure
that “one
cannot claim direct discrimination when one is treated adversely solely
on the basis of behaviour stemming from a religious
belief.” Should
people treated adversely owing to religious behaviour never be able to
claim direct religious discrimination, no matter how gross and unjust?
Surely that is not what we are aiming at. And does that not contradict
the approach of the hon. Member for Oxford, West and Abingdon in
amendment 217, which states that all behaviour stemming from sexual
orientation should be protected? So behaviour stemming from religion
should not be protected, but that stemming from sexual orientation
should. I do not understand how that is
fair.
The
Chairman: Order. I do not think that we can have another
debate on amendment 217. The best way forward is for
Mr. Mason to proceed.
John
Mason: Thank you, Lady Winterton. That is fair
enough.
The position
underlined by the EAT ruling on Ladele, under which religious rights
come last, is not acceptable. Whichever side of the argument we are on,
we should not enshrine that position in legislation as suggested in
amendment 221. We should be rebalancing these matters; but I shall
return to that in later amendments.
The
Solicitor-General: There is a theme to these amendments
and the new clause around safeguarding the rights of religious-minded
people. I must deal with them individually, however, because they all
come from
different angles. If the hon. Member for Oxford, West and Abingdon will
bear with me, I shall deal first with the amendment and new clause
tabled by the hon. Member for Glasgow,
East.
Given that
the hon. Gentleman’s amendment is to clause 13, his intention,
as I think that he stated, is to make placing tighter restrictions on
religious expression than on non-religious expression a form of direct
discrimination. However, that is not possible, because direct
discrimination, as defined in clause 13, means treating somebody less
favourably owing to a protected characteristic, such as religion or
belief. It is not about religious expression, but about having the
characteristic of religion or belief. I shall try to dovetail my
argument into the case law that he quoted. Let us imagine that an
employer has a rule against employees expressing or promoting their
religion or belief in the course of their work. Someone who broke that
rule and was dismissed might claim that was less favourable treatment
because of their religion or belief, but if they were dismissed for
inappropriate promotion of their belief, the dismissal would not be
unlawful discrimination within clause 13.
I do not know
enough about the Booker case mentioned by the hon. Gentleman, nor about
the other case, but it sounded as though those people were disciplined
for breaking their employer’s internal code of conduct. That is
different from being dismissed because of one’s religion or
belief. The
case of Chondol v. Liverpool city council, an employment
tribunal about this issue, was upheld by the EAT, which said that
the
“distinction
between, on the one hand, the Appellant’s religious belief as
such and, on the other, the inappropriate promotion of that belief is
entirely valid in principle (though of course in any case in which such
a distinction is relied on it will be necessary to be clear that it
reflects the employer’s true
reason).” So,
that is different from dismissing someone because they hold a religious
belief. Clause 13 is about providing protection to someone who is
treated less favourably because of their religion or belief, so the
amendment does not fit into it at all, and I ask the hon. Gentleman to
withdraw it.
In a sense,
the hon. Gentleman could afford to withdraw the amendment anyway,
because most of what he seeks to encapsulate is in his new clause 3,
which is intended to guarantee freedom of personal religious expression
for those who work for a public authority, where those expressions of
belief remain
“consistent with
requirements of
law” and
do not have an adverse impact
on “the
interests of workplace
efficiency.” We
do not think that the new clause would make any difference to the
protection that is provided to people with a protected characteristic
of religion or belief.
I have said
this a number of times today, but I had better say it every time the
hon. Gentleman alleges these things: we do not think that religious
rights come last or that religion is persecuted. We do not think that
religion is the poor relation or that religious expression is treated
in an inappropriate way. We do not accept for a minute what seems to be
his presupposition that religion is at the bottom of the pile
overall.
John
Mason: I kind of accept that about the Government’s
intentions, but does the Minister accept that some employers who
perhaps do not have such a detailed knowledge of the law tend to treat
religion as the poor relation?
The
Solicitor-General: I am not able to do an instant survey
of employers to find out whether they put religion first, second, third
or 57th. Anyway, what the hon. Gentleman is saying is not that, but
that it is perfectly acceptable to the Government that religion should
come bottom of the heap, and that that is what the Bill does, but I
repudiate that lock, stock and however many smoking barrels there were
in the name of the film—two I think.
I am sure the
amendments are well meant, but they would not make any difference
because the Bill replicates the position under current legislation and
maintains a person’s right to hold and to express religious or
non-religious beliefs. The measures are totally in line with article 9
of the European convention, which says that everyone has the right to
freedom of thought, conscience and religion. There is no provision to
prevent people from legitimately expressing their religious beliefs,
whether in the context of employment by a public authority or anyone
else, and we take the need to preserve the rights of religious liberty
and free speech in every sector of society very seriously. Any
legitimate freedom of expression will remain lawful as is required of
us under article 10 of the European convention.
We are aware,
as I think the hon. Gentleman is because of the nature of his new
clause 3, that it is important to balance the right of freedom of
religious speech with other protected characteristics. The measures are
not about creating a hierarchy, but seek to strike a balance where
there are potentially conflicting rights, such as between religion and
belief, and sexual orientation. The provisions do contain a test of
reasonableness to apply where there are issues that may be construed by
some as harassment within the workplace: for instance, an atheist
church cleaner offended by crucifixes on display because that is not
the cleaner’s beliefs. An element of reasonableness has to be
injected there, and the Bill does that, so as to balance the rights of
religious expression, and the other
rights. The
amendment itself acknowledges that some legitimate restriction may be
imposed, perhaps on someone’s right to freedom of religious
expression within the workplace. The new clause includes the proviso
that the liberty has to be consistent with the requirements of law in
the interests of workplace efficiency. We think that balance is already
in the Bill and the right to religious expression is adequately
protected. Amendment 36 to clause 13 should go, because it does not fit
in that place at all. New clause 3 does not add anything and would not
alleviate the concerns expressed, which I am sure we will debate again
when we get to the schedules. I ask the hon. Gentleman not to press
both the amendment and new clause.
Amendment
221, tabled by the hon. Member for Oxford, West and Abingdon, would
have the effect of clarifying the fact that it is not unlawful to
discriminate against people because of a manifestation of their
religion or belief. In other words, it is not unlawful for A to
discriminate against B because of a manifestation of B’s
religion or
belief. Religion
or belief has a wide meaning. That does not mean that each and every
need of a person who has a religious belief must be catered for. The
definition of religion or belief does not include manifestations of
those things. That distinction is present in article 9 of the ECHR,
too. So, somebody might wear particular
clothes, pray at particular times in accordance with the tenets of their
religion, express views, and say or do other things reflecting beliefs.
In such a case, if a person suffered a disadvantage because they had
done or said something related to that, it would not constitute direct
discrimination on the grounds of religion or belief under the current
legislation. It is a mirroring of the hon. Member for Glasgow,
East’s position—perhaps it is the same. It would be
direct discrimination only if a person with different beliefs or no
belief were treated more favourably in similar circumstances. That is
why the EAT in the Ladele case—and courts and tribunals in other
cases—was entitled to reach the conclusions it did. I think
least said soonest mended about that because it is going to appeal, is
it not? We do not want to comment on a live case. However, the Bill
does not change the existing law, so I hope I have satisfied the hon.
Gentleman that the amendment is not
necessary. Dr.
Harris: I am grateful for the Minister’s response;
I did not expect her to accept the amendment or even to recognise it as
necessary. However, what she said was supportive, as far as it
went—given her view that even though we are discussing
legislation, she does not want to comment directly on a case that is
going to further appeal—and I am relieved to hear
that.
I want
briefly to respond to a couple of points made by the hon. Member for
Glasgow, East, because it is important to clarify that I, for one, do
not believe that religion is—or should be—a poor
relation. Nor is it a form of discrimination that dare not speak its
name. Those sorts of cases are all over the Daily Mail. I am not
seeking to damn him, by association, or the Daily Mail. Indeed,
I am pleased to see that religious claimants are well resourced to
bring cases through the Christian Legal Centre—that is their
right. I just want us to be clear in advance so that employers are not
dragged into the courts or scared of fighting a
case. 6.15
pm I
am clear that, if there is outrageous behaviour—I do not think
that Islington council was found guilty of this—against someone
on the basis of their religion, that is harassment in employment and is
rightly covered. I have not tabled amendments to weaken the harassment
provisions, although I have some sympathy with the proposal of the hon.
Member for Glasgow, East to change “or” to
“and” in clause 24. I do not think that the fact that one
cannot bring a claim of direct discrimination on the basis of a
manifestation of religion means that employers are at liberty to treat
people badly on the basis of their religious views. In fact, quite the
opposite—and rightly so, in my
opinion. On
the issue of a hierarchy, it is generally not the case that gay
employers or indeed colleagues give religious people a hard time. There
is not that sort of problem with religion being put upon by the other
strands. It is just a question of recognising that sometimes there is
tension. The way the Minister put it is right, and I beg to ask leave
to withdraw the
amendment. Amendment,
by leave, withdrawn.
Dr.
Harris: I beg to move amendment 219, in
clause 13, page 9, leave out lines 21 and
22 and insert— ‘(6) It does
not matter if the protected characteristic that B has is also shared by
A.’.
This is to probe why the provision in Clause 13(6)
which applies to religion and belief does not in fact apply to other
strands.
The
Chairman: With this it will be convenient to discuss
amendment 218, in
clause 13, page 9, line 22, at
end insert— ‘(6A) If the
protected characteristic is sexual orientation it does not matter
whether the sexual orientation is also
A’s.’. This is to
probe why the provision in Clause 13(6) which applies to religion and
belief does not in fact apply to other
strands.
Dr.
Harris: The two amendments are probing, self-explanatory
and explained by the Member’s explanatory statements. I could go
into the history of where the provision first appeared and then did not
appear in a previous version of the regulations, but I will not seek to
do so. I think that the Minister is in a position to respond to the
points on the basis of the amendment as written and the Member’s
explanatory statements, and I look forward to hearing her
response.
The
Solicitor-General: It is not a defence, if a gay person,
for instance, is discriminated against, to say, “It is not
discrimination, because I am being myself.” There is no such
defence at all. I hope that that is sufficient for the hon.
Gentleman’s purposes.
Dr.
Harris: I would be grateful if the Minister could directly
answer the question as to why the provision appears in respect of
religion but is not expressed in respect of sexual orientation or
indeed the other strands. I think that she is saying that the same
applies to all the others, even though it is not written. If she is
saying that, that is useful. I would be grateful if she could confirm
that and explain whether there is a reason why that is not included. As
I have admitted, I am not going to press the amendment, but it was
proposed in the spirit of wanting to hear whether there is a reason why
religion and belief is picked out in the way it
is.
The
Solicitor-General: The provision is not new. Clause 13(6)
is there because there are religions with different sections and
different kinds of adherence to the religion. Judaism and Islam, for
instance, encompass a range of views from orthodox to liberal and
moderate. The extremes in differences in outlook and lifestyle are
considerable within those religions, with the attendant potential for
discrimination by some of the followers of another sector. That is why
there is a separate provision for religion.
I can
reassure the hon. Gentleman that the interest groups that he talks to
regularly, apart from that sector, are not aware of any potential for
difficulty in other strands. Even if they were, the Bill protects that
situation. That is why the religion provision is different from the
others. As a woman, it is no defence say, “There cannot be
discrimination against another woman.” In fact, if I have
discriminated against her, it is discrimination—end
of.
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