Lynne
Featherstone: I thank my hon. Friend for that helpful
intervention. I beg to ask leave to withdraw the amendment but may
return to the subject
later. Amendment,
by leave, withdrawn.
Amendments
made: 92, in
clause 16, page 11, line 23, leave
out ‘less favourably’ and insert
‘unfavourably’. See
explanatory statement for amendment
91. Amendment
93, in
clause 16, page 12, line 1, leave
out ‘less favourably’ and insert
‘unfavourably’. See
explanatory statement for amendment
91. Amendment
94, in
clause 16, page 12, line 2, leave
out ‘less favourably’ and insert
‘unfavourably’. See
explanatory statement for amendment
91. Amendment
95, in
clause 16, page 12, line 13, leave
out subsection (7).—(The
Solicitor-General.) See explanatory
statement for amendment
91. Clause
16, as amended, ordered to stand part of the
Bill.
Clause
17Pregnancy
and maternity discrimination: work
cases Amendments
made: 96, in
clause 17, page 12, line 20, leave
out ‘less favourably’ and insert
‘unfavourably’. See
explanatory statement for amendment
91. Amendment
97, in
clause 17, page 12, line 23, leave
out ‘less favourably’ and insert
‘unfavourably’. See
explanatory statement for amendment
91. Amendment
98, in
clause 17, page 12, line 25, leave
out ‘less favourably’ and insert
‘unfavourably’.—(The
Solicitor-General.) See explanatory
statement for amendment
91. Clause
17, as amended, ordered to stand part of the
Bill.
Clause
18Indirect
discrimination
Dr.
Harris: I beg to move amendment 153, in clause 18, page
13, line 13, leave out ‘a proportionate means of achieving a
legitimate aim’ and insert
‘objectively justified by a legitimate aim and the
means of achieving that aim are appropriate and
necessary.’. This amendment aligns
the ‘legitimate aim’ test with one established in
community
law. We
come to a clause dealing with indirect discrimination. I am not sure
how far we will get with it, but we will do our best to make progress
while we still have
time. Amendment
153 is straightforward. It seeks to replace the test used for the
legitimate aim with one that uses wording set out in community law. So,
instead
of “a
proportionate means of achieving a legitimate
aim”, we
would insert “objectively justified by a
legitimate aim and the means of achieving that aim are appropriate and
necessary.” We
could have a long debate about whether the two sets of words amount to
the same thing. In the view of the organisations that have contacted
me—they feel strongly about this—not only is it better
for us to stick to the words established in community law in this area
and to seize the opportunity of this new primary legislation to do so,
but also, the
phrase “the
means of achieving that aim are appropriate and
necessary” is
more helpful than merely talking about proportionate means.
The
term “proportionality” is bandied about a great deal in
this place, increasingly so because it is the language of parts of the
Human Rights Act 1998, and because it is an important concept.
Nevertheless, in this area, where careful judgments need to be made
around indirect discrimination, as we discussed earlier, it would seem
helpful to our courts, and to complainants and defendants—or
whatever the correct terms are in employment tribunals and county
courts—for us to use the language of community
law. 7
pm It
is important to include the concept of necessity, which is not obvious
in the word “proportionate”. The language for many
Community law directives talks about discrimination being
“necessary” as well as “proportionate”. I
do not understand why the mother legislation that we have signed up to
in the treaty uses “necessary”, as distinct from
“proportionate”, if “proportionate”
includes “necessary”. The Government have to have an
almighty justification for not doing what the amendment suggests. I
look forward to hearing the Minister’s
response.
The
Solicitor-General: The point of the amendment is to change
the wording from
“a proportionate
means of achieving a legitimate aim”
to the wording used in
the European directive. We do not think that we should do that; it is
unnecessary and our phrase is better. The phrase in paragraph (d) has
been used for a long time to describe objective justification in
British law and its full meaning is well understood by courts and
tribunals. Means that are “proportionate” must be
“appropriate and necessary”, which are the words that the
hon. Member for Oxford, West and Abingdon would include. Both concepts
are included in the test that we have used, but they need not be
necessary in the sense of being the only possible means of achieving a
legitimate aim. It is sufficient that the means are not more
discriminatory than any other means that could have been chosen to
achieve the same end. Since the test encapsulates what objective
justification is, the words “objectively justified” would
add nothing at
all. There
is a risk that changing language well established in British law could
lead to an excessive narrowing of the scope of justification beyond
what the directive requires, because that change could be—and
“necessary” has been—interpreted very strictly by
our courts. However, they are obliged to interpret the legislation
compatibly with the directive and they know how to do that. In a
nutshell, this is well-tried and well-used language that everybody
understands. The hon. Gentleman’s proposal adds nothing, so we
see no point in the amendment. Therefore, we respectfully invite him to
withdraw it.
Dr.
Harris: I think that we are going to have to agree to
disagree on this, which leaves us with a stalemate. I simply disagree
with the Minister when she says that it is not valuable to use
“objectively justified” or the language of the directive
in our terminology. I will reflect on what she has said about our
domestic courts’ treatment of “necessary” and see
what advice I receive. We may come back to this at a later stage. Since
we cannot take it any further and the Minister has at least explained
why she does not like it, I beg to ask leave to withdraw the
amendment.
Amendment,
by leave, withdrawn.
Mr.
Harper: I beg to move amendment 9, in
clause 18, page 13, leave out line
17.
The
Chairman: With this it will be convenient to discuss
amendment 198, in
clause 18, page 13, line 23, at
end add— ‘(4) If the
protected characteristic is disability, nothing in the section shall be
taken to prohibit more favourable treatment of a disabled person on the
grounds of the disabled person’s
disability.’.
Mr.
Harper: I should say at the outset that
amendment 9 is a probing amendment so I do not intend to
push it to a Division. I tabled it because, reading clauses 13 and 14
together, it was not entirely clear what additional protection for
disabled people clause 18 brought to the table. It may be better to
have all the protected characteristics listed—and clause 18 may
do no harm—but I would like the Minister to set out what it
brings to the table that is not covered by clauses 13 and 14. Given
that we have said that clause 14 may have to be reconsidered, it might
be worth having that
discussion. I
will speak briefly to amendment 198, because we have dealt with this
issue and the Minister has been constructive. It would make the Bill
state that there could be more favourable treatment in relation to the
protected characteristic of disability. However, the Minister
generously offered to work with the DCC to look at the wording of
clause 13 and to return on Report, and this proposal essentially covers
the same
argument.
The
Solicitor-General: Amendment 9 would remove disability
from the list of protected characteristics. I know that the hon.
Gentleman does not intend to do that, because it would be detrimental
to disabled people and would deny them protection from indirect
discrimination, as is the current situation. That is contrary to the
key aim of the Bill, which is to strengthen protection where gaps exist
and to streamline it. We are filling a gap by putting disability into
clause 18. As we streamline the legislation , we are bringing
disability into line with other protected
characteristics. As
I have recently said, when we looked at the response to the Malcolm
judgment, we consulted on giving protection from indirect
discrimination. About half of the responses favoured that, but we were
persuaded that doing so would not be enough. That is why we are
introducing protection from discrimination arising from disability. We
were also convinced that protection from indirect discrimination would
help to prevent systemic forms of discrimination against the disabled.
One can readily think of examples, such as an employer who makes a
practice of requiring all management trainees to go on an Outward Bound
course. That would be indirectly discriminatory towards a particular
group of disabled people who work for the company. We think it is right
to put disability in the clause to deal with such
situations. There
is a draft EU directive that, if passed, as we think it will be, will
protect people from discrimination on the grounds of disability, age,
sexual orientation and religion or belief in areas beyond employment.
That will cover access to goods and services and the functions of
public bodies. It includes a provision that would require us to provide
specific protection from indirect discrimination for all protected
characteristics. That is still under negotiation, but the principle of
indirect discrimination is well established and will inevitably go
forward. We have included disability in the list to ensure that we give
disabled people an appropriate level of protection and to meet that
anticipated
requirement. Amendment
198 makes it plain that introducing protection against indirect
discrimination for disability does not prevent disabled people from
being treated more favourably. As the hon. Gentleman has acknowledged,
we have gone over that ground. I hope that I can short-circuit the
debate by saying that we agree that we must make plain the asymmetric
approach towards disabled people that it is intended will be adopted
under the Bill and that we will do that by redrafting clause 13. That
is preferable to the adoption of amendment 198. If he is satisfied with
that, I will not pick holes in the
amendment.
Mr.
Harper: I am grateful to the Minister for that response. I
am comfortable with her suggestion on amendment 198. As I said, we have
discussed that issue and she has been constructive about how she will
approach that by looking at clause
13. Amendment
9 is a probing amendment. The Minister has explained what extra
benefits disabled people will have through the inclusion of that
protected characteristic in clause 18. I beg to ask leave to withdraw
the
amendment. Amendment,
by leave,
withdrawn.
Dr.
Harris: I beg to move amendment 224, in
clause 18, page 13, line 23, at
end add ‘pregnancy and
maternity’. This is to probe why pregnancy
and maternity are omitted from the list of protected characteristics
for indirect
discrimination. The
amendment probes why pregnancy and maternity are omitted from the list
of protected characteristics for indirect discrimination. I understand
that there is an argument that by definition it would be indirect
discrimination on the basis of gender, but I would argue that it
probably would do no harm to have a list that is consistent throughout
the Bill. Therefore, the question at least deserves an answer that is
not totally dismissive. In order to help us make progress, I will leave
my remarks at that
point.
The
Solicitor-General: But the hon. Gentleman none the less
answers his own question. A woman who is indirectly discriminated
against because she is pregnant, or is a new mother would, by
definition, be able to make a claim of indirect sex discrimination,
since any provision or practice which disadvantages pregnant women or
new mothers is disadvantageous to women. That is the current position
and we are not aware of any difficulty, so we just go forward with the
law as it is. I hope that that satisfies
him.
Dr.
Harris: I note what the Minister says and I beg to ask
leave to withdraw the amendment.
Amendment, by leave,
withdrawn.
John
Mason: I beg to move amendment 37, in
clause 18, page 13, line 23, at
end insert— ‘(4) If the
protected characteristic is religion or belief, for the purposes of
subsection (1), and subject to subsection (2), a provision, criterion
or practice is discriminatory if it requires persons of B’s
religion or belief to act in a way which contravenes the stated
doctrinal or ethical teachings of the religion or
belief.’.
Makes clear that requiring a person to act contrary
to the accepted teachings of his or her religion or belief is a form of
indirect discrimination. N.B. Indirect discrimination is still
permitted if it is proportionate—see Clause
18(2)(d). Like
other Members, I am happy to make my arguments brief, especially as we
have already touched on some of this. I thank the Solicitor-General for
her assurances that she sees religion as one of the strands and that it
is not being disadvantaged. It is good to have that on the record from
her previous statements and I take those reassurances at face value.
The point of the amendment is the link between religious belief and
behaviour. We have touched on that, both in sexual orientation
behaviour and with regards to religion. I argue that it is very hard to
separate the two, although I accept that to some extent there are
differences.
The point of
how far the state should go in regulating a religion and religious
behaviour is hard to determine, but we need to get the balance right.
Clearly, there are examples of the state going too far and, for those
who are familiar with the Bible and Daniel and the lion’s den,
Daniel was told not to pray in public. That was going too far: he went
into the lion’s den, but he was saved. At the same time, I
completely accept that it should not be the case that every individual
just claims religion as an excuse for absolutely anything. That is why
we are not saying it would be a total exemption, but we are talking
about things contravening the stated doctrinal or ethical teachings of
the religion or belief, which I hope protects against people just
having their own, individual, very strange ideas. That is probably
enough just to make the point and I accept that this is building on
what we have been saying before.
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