Clause
24Harassment
Dr.
Harris: I beg to move amendment 230, in
clause 24, page 17, line 26, at
beginning insert, ‘Subject to subsections (2A), (2B), (2C) and
(2D),’.
The
Chairman: With this it will be convenient to discuss the
following: amendment 38, in clause 24, page 17,
line 27, leave out ‘or’ and insert
‘and’. Raises
the threshold in the definition of harassment in order to mirror the
wording of EU Directive 2000/78/EC, Article
2.3. Amendment
231, in
clause 24, page 17, line 29, at
end insert— ‘(2A) Subject to
subsection (2D) where the protected characteristic is sexual
orientation, for the purposes of Part 3 (Services and Public
Functions), the purpose or effect
is— (a) violating
B’s dignity; and (b)
creating an intimidating, hostile, degrading,
humiliating or offensive environment for
B. (2B) Where the protected
characteristic is sexual orientation or gender re-assignment, for the
purposes of Part 6 (Education), the purpose or effect
is— (a) violating
B’s dignity; and (b)
creating an intimidating, hostile, degrading,
humiliating or offensive environment for
B. (2C)
Subject to subsection (2D) where the relevant
characteristic is religion or belief, for the purposes of Part 3 and
Part 6, the purpose or effect
is— (a) violating
B’s dignity; and (b)
creating an intimidating, hostile, degrading or humiliating environment
for B. (2D) Subsection (2A) and
(2C) apply to Part 3 (Services and Public Functions) only where the
provision of a service
is— (a) carried out by a
public authority, (b) carried
out on behalf of a public
authority, (c) carried out
under contract to a public authority,
or (d) otherwise carried out in
the exercise of a public
function.’. This
amendment extends protection against harassment on grounds of sexual
orientation, gender reassignment and religion or belief in relation to
part 3 (where exercising a public function) and part 6. Harassment is
defined in a more limited
way. Clause
stand part.
Dr.
Harris: I think that amendment 232 to clause 27 is
consequential on the amendments that I and my hon. Friend the Member
for Hornsey and Wood Green have tabled. I am happy to deal with it now
rather than on clause 27, if that is convenient, although obviously you
would need to agree to that, Mr. Benton. However, if I deal
with it appropriately now, I will not need to speak to it
later. There
is a threefold purpose to my amendments. The first is to extend the
protection from harassment in law to captive populations—people
who cannot escape harassment, and vulnerable people in particular. That
could include people in the education system—pupils at school,
for example—or users of public services who, given the nature of
those services, might be vulnerable. They might rely on those public
services and they should not have to suffer harassment while accessing
them.
The clause
provides protection from harassment to all the strands except two; I
will come to that during the clause stand part debate. However, other
parts of the Bill specifically exclude discrimination on the grounds of
sexual orientation, religion and belief, and gender
reassignment—to use the Government’s term—in
certain areas.
Mr.
Boswell: For the information of the Committee, will the
hon. Gentleman clarify whether the definition of public services that
he has in mind regarding captive audiences and groups includes
prisoners? There are concerns about harassment and discrimination among
certain groups of sensitive
prisoners.
Dr.
Harris: Indeed. Clearly, imprisoning people as part of the
criminal justice system is a public service. It is a public function,
even if it is delivered by the private sector under contract. There has
never been any argument about that and human rights laws apply. If we
are identifying a distinction between the general delivery of services
and public services, as I urge the Committee to do, and saying that
there should be greater protection where people are receiving public
services, that point applies.
Let us deal
first with education. In education, there is no protection from
harassment on the grounds of sexual orientation, gender reassignment
and religion or belief. I understand that in respect of gender
reassignment that exclusion exists only in education. There is
protection from harassment on the grounds of gender reassignment in the
provision of services, but not in education. It is amazing that
education should be singled out as the one place where young people,
who are likely to be in education, are not protected against harassment
on the grounds of gender reassignment as defined in the
Bill. Harassment
in those circumstances means violating the dignity of someone on the
grounds of gender reassignment. That might involve someone who is on
the journey towards gender reassignment, for example, or even before
that, if the House accepts the definition of gender reassignment
proposed by the Liberal Democrats. Under my amendment, harassment would
also include the creation of
an “intimidating,
hostile, degrading, humiliating or offensive environment for
B.”
I do not see how it can
be considered acceptable for any school to be allowed to get away with
that happening to a vulnerable pupil.
I understand
that gross cases of harassment might be dealt with by direct
discrimination legislation, but we need a protection that applies to
cases that fall short of that, just as other strands are protected. It
is not good enough to say that it is okay because if someone is picked
on in a specific way by a teacher, for example, that passes the
threshold for direct discrimination. On that basis, why have any
harassment provisions in schools when direct discrimination provisions
already apply in the worst
cases? On
sexual orientation, the evidence that harassment exists in schools is
even stronger. That is why the omission of some form of protection
concerning sexual orientation is a concern. I accept that issue has
been controversial for a while, and I have not always argued as
strongly as I do now that we need protection on the grounds of sexual
orientation in harassment provisions generally. Indeed, my party and I
were supportive when the sexual orientation regulations provided not to
do that—when such matters were dealt with by
regulation. Part
of that was, first, a concern that free speech might be inhibited in
the general provision of services and, secondly, that primary
legislation was needed to delve into whether the definition of
harassment would be so strict that it fell on the wrong the side of the
balance, restricting freedom of speech—chilling freedom of
speech—and making some speech unlawful, which would have been
disproportionate to what we wanted to
do. The
case has been made that there is a problem in respect of the amount of
homophobic bullying that is known to take place in schools. Many
schools are failing even to develop policies specific to homophobic
bullying. In other words, they are not doing what they need to do to
start to tackle the problem. It is unacceptable in such circumstances
for there to be no legal protection against harassment on the grounds
of sexual orientation. That would focus the minds of governing bodies
of schools, whether faith or other schools, on the fact that they have
a legal obligation to protect vulnerable pupils and that the creation
of an environment that is intimidating, hostile, degrading, humiliating
or offensive is not
acceptable. I
am sure that the Government agree that such a thing is not acceptable.
The religious witnesses at the oral evidence sessions also agreed that
they would not want to see it, but for some reason they thought that
the law should not apply. That is an unsustainable position. If the
problem is serious enough to say that it should not happen and there is
evidence that it does happen—there is no doubt about
that—there is no reason to provide a legal exclusion on such
grounds. I
hope that the Government do not share the view that such a thing is
unacceptable but that it does not have to be provided for in law. In
respect of sexual orientation protection in schools, we believe that
the case is at its
strongest. Arguably,
there ought to be protection from harassment on the grounds of sexual
orientation in the delivery of public services. It seems wrong that
people receiving public services, which are often their
right—there is sometimes only one provider
available—should have to suffer harassment without recourse to
law. The providers,
because there is no legal obligation, do not prioritise the need to
educate their work force that harassment ought not to take place,
however strong the views about the morality of sexual orientation or
other
matters. It
is not good enough to rely on the argument that there may be a variety
of service providers available. In the case of discrimination on the
grounds of race, we did not argue that one was entitled to have a
whites-only bus on the basis that there was a bus with mixed passengers
following just behind and that that was all right for the lady in the
United States who objected. The Government quite rightly used that
argument—I remember Ministers doing so, and I applauded
them—when people sought an exemption from the injunction not to
discriminate on the grounds of sexual orientation when providing
adoption services to lesbian and gay people. Catholic adoption agencies
argued, for example, that there would be other providers that lesbian
and gay parents could go to. That is not an acceptable way to deal with
unjustified discrimination, saying, “Oh, we can, because there
is another organisation down the road.” Sometimes a school or a
service provider is the only service provider in the village—to
paraphrase a comedian in relation to sexual orientation. Therefore,
people in receipt of public services have a right not to be
harassed. In
those areas there is a clear argument for having the protection. The
question then moves on—in this matter, I shall deal with the
amendment standing in the name of the hon. Member for Glasgow,
East—to the conjunctive versus the disjunctive version of clause
24(2). The wording is that the “purpose or
effect” referred to in subsection
(1) “is...
violating B’s dignity, or... creating an intimidating,
hostile, degrading, humiliating or offensive environment for
B.” The
original directive uses not the disjunctive “or”, but the
conjunctive “and”. The hon. Gentleman highlights that in
his amendment, but it would be difficult to change that protection,
which is clearly a higher protection, because it is easier to qualify
for an either/or definition than to satisfy both limbs. The principle
of regression probably means that it is not possible for us to go back
and undo protection against harassment on existing
grounds. 9.45
am Whatever
the merits of that argument, my proposal would not do that, but I
recognise that there is an argument for a slightly narrower definition
which is based on the need to have respect for freedom of speech and
the idea that too low a threshold for harassment claims might intrude
on freedom of expression. Clearly, the conjunctive version will be
narrower, because behaviour would have to have the purpose or effect of
violating the dignity of someone to whom it was directed and creating
an environment that was
“intimidating,
hostile, degrading, humiliating or offensive”.
Our proposal
for harassment protection on the grounds of sexual orientation and
gender reassignment uses that version. People will argue that it is a
lesser protection than currently. They might argue that a one-off
occurrence of harassment is difficult to fulfil the limb, which would
be required with an “and”, that it creates an
environment—it is hard to create an environment with a one-off
action.
If the one-off action were sufficiently serious, it might well be caught
by provisions on direct discrimination; if it were not so serious, it
would be reasonable to take a “two or three strikes and
you’re out” approach, as currently exists in harassment
law regarding the actions of third parties for which employers have
some responsibility. That is a reasonable balance. I looked
carefully at whether creating an offensive environment—that is
the easiest of the environments to create—on the ground of
sexual orientation even when that is not intended goes too far, but I
cannot think of any scenario, even in the teaching of religious
education, in which it is acceptable to create an offensive
environment. There is no need to do so. If a teacher of religious
education needs to say that some religions believe that homosexuality
is sinful or worse, they can do so, but that does not create an
offensive environment unless they actually say, “Homosexuality
is sinful.” It is not appropriate for school teachers to tell
people that their lawful behaviour or that of their parents is sinful
and stands to be condemned. Describing what other people think would
not fulfil those grounds, but if people feel that it would create too
great a constraint, we would be willing to consider the matter, because
it is important to have some protection.
The same
provisions apply in principle to religion and belief: there needs to be
protection for people against harassment on the grounds of their
religion or belief in schools or when they are in receipt of public
services. Exactly the same arguments that I made in respect of sexual
orientation apply. Other forms of the law—there is cross-party
support for this—recognise that it is difficult to avoid causing
offence on the ground of religion based on the religious sensitivities
of B. Often, one religion’s theology is offensive to
another’s by definition. I make no criticism of that because it
is the way of such things. It is probably also true of politics,
although that is not covered. It is therefore reasonable to have a
significantly narrower definition of harassment to ensure that the
usual conduct of religious behaviour is not caught.
It is
therefore reasonable to argue that there should be protection from
harassment on the grounds of religion and belief on a conjunctive
definition that omits the term “offensive” with regard to
environment. No matter how sensitive or thin-skinned someone
is—I do not use that term pejoratively—I do not believe
that it is appropriate in education and in the delivery of public
services to create an
“intimidating,
hostile,
degrading...or...humiliating...environment”.
So even if someone does
not find something such as a poster offensive, I do not see how we can
defend not outlawing the creation of an environment with the
characteristics I just described. Therefore, the amendments that stand
in my name, which are my best attempt to construct such an argument in
the frame of an amendment, rather than a new clause, seek to strike the
right balance between extending protection and preserving free
expression.
I have not
read into the record the examples of homophobic bullying that exist in
schools, sent from organisations such as Schools Out, Stonewall and
OutRage!. However, I am sure that hon. Members are aware of them, and
do not need me to do that here. None the less, I want to pay tribute to
those organisations for their
long-standing work, in partnership with parliamentarians of all parties
in this House over many years, to highlight the
problems. Turning
to the clause stand part, the issue with the test in subsection (3) is
interesting. The question is whether it is sufficiently objective for
the purposes of the existing protection, and whether it is sufficiently
objective to provide enough protection for the freedom of expression
and behaviour, where we seek, as I do, to extend protection from
harassment to new grounds. I will be grateful—this is the reason
I am flagging it up—if the Minister gives us the benefit of her
views, based on her experience and insight, regarding how objective she
believes the test
is. The
wording of the subsection
is: “In
deciding whether conduct has that
effect,”— the
effect that I have described, in the currently disjunctive definition
in subsection
(2)— “each
of the following must be taken into
account— (a)
the perception of
B; (b)
the other circumstances of the
case; (c)
whether it is reasonable for the conduct to have that
effect.” The
question is whether paragraph (c) is a stand-alone issue for the courts
to decide, or whether it still relates to the perception of B. It is
important not to argue that it is regression, but I hope that the
Government will agree with the following: separating out the
perceptions of B and A and seeing whether it is reasonable for the
conduct to have that effect would create a more objective test, so that
someone outside may ask, “Is it reasonable that that behaviour
creates the environment without having as much reliance on the
perception of B as would exist if that was all in the same
paragraph?”. In other words, it asks whether it is reasonable
for the conduct to have that effect by taking into account the
perception of B and all the circumstances, or whether that is the case
by taking into account all the circumstances of the case, including, in
particular, the perception of B. It strikes me that that is a slightly
more objective test. I hope that that is the case, because there needs
to be some objectivity
here. We
know what we are trying to get at. Pictures of pin-ups in workplaces
clearly create the environment that is talked about, and indeed may
violate the dignity of a woman. It is not a question of subjective
perception or the need to be particularly sensitive, even if there were
a woman in the workplace who did not find that offensive—that is
a reasonable, objective test to be made. I am not arguing that that is
regressive in any way, but I hope the Minister will agree that it
clarifies that the test of reasonableness does not relate to the
perception of B, but is, in a sense, a stand-alone
issue. The
other point that I want to raise on clause stand part is the exclusion
of marriage, civil partnership, pregnancy and maternity from the list
of protected characteristics. The missing characteristics raise the
question why there is no coverage at all, even in existing protected
environments such as the workplace, where we know this sort of
harassment currently exists. I believe that the Minister has been asked
about the matter by the Joint Committee on Human Rights, among others.
It would be useful if she could explain why the list of protected
characteristics in subsection (5) does not extend to those two
areas.
Without giving
examples of the sort of mischief that I am trying to cover, I hope that
I have made a very strong case for the extension of harassment
protection on the grounds of sexual orientation to schools and the
provision of public services, on the grounds of gender reassignment to
schools and on religious grounds, on a narrower definition, to
schooling and provision of public services. This is a controversial
matter. After the Equality Act (Sexual Orientation) Regulations
(Northern Ireland) 2006, which included a harassment provision, were
introduced by the Government, as a take-it-or-leave-it measure, they
were challenged in judicial review in Northern Ireland. The court
rightly upheld the regulations in general, and the only part that did
not survive the challenge—rightly so, in my view—was the
harassment provision. That was based mainly on a lack of consultation,
but the judge also referred to concerns by the Joint Committee on Human
Rights.
That does not
mean, however, that there should never be any protection from
harassment. The Government did not get it quite right in the 2006
regulations, and were wise not to put them in the Great Britain
regulations, because by their nature they were unamendable. The Bill
gives us an opportunity to deal with this matter in a considered way,
and I hope that the Government will view my probing amendment—it
would not be appropriate to divide on it—as a way in which to
open this debate, so that we can hear either the Government’s
justification or their willingness to consider the matter
further. Emily
Thornberry (Islington, South and Finsbury) (Lab): In the
past 12 years, huge changes have been made to equality legislation, and
the gay and lesbian community is now on the verge of absolute equality
under the law. However, much remains to be done. Clearly, one of the
most important areas on which people quite rightly focus is the way in
which young gay and lesbian people are treated at school. The extent of
homophobic bullying is frightening, and anything that we can do to
stamp it out is incredibly important. I also seek clarification from my
hon. and learned Friend on whether the legislation, as proposed, is
sufficient to do everything possible to ensure that young and
vulnerable people, who are just finding themselves, are not subjected
to
bullying.
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