John
Mason: I shall speak, in particular, to amendment 38,
although I shall refer to comments made already. Once again, I am
speaking in a personal capacity, rather than on behalf of my
party.
I tabled
amendment 38 primarily to probe why the definition of harassment
adopted in the UK is wider than that found in the relevant EU
directive. The test for harassment in the Bill, and in previous
legislation, including the 2003 employment equality regulations, has
two alternative limbs: the unwanted conduct has the “purpose or
effect” of violating the victim’s dignity or
of “creating
an intimidating, hostile, degrading, humiliating or offensive
environment”
for
him. That
definition first appeared in the Employment Equality (Sexual
Orientation) (Amendment) Regulations 2003 and the Employment Equality
(Religion or Belief)
Regulations 2003. Those regulations implemented EU directive 2000/78/EC.
Article 2.3 of that directive defines harassment in these
terms: “Harassment
shall be deemed to be a form of discrimination within the meaning of
paragraph 1, when unwanted conduct related to any of the grounds ...
takes place with the purpose or effect of violating the dignity of a
person and of creating an intimidating, hostile, degrading, humiliating
or offensive environment. In this context, the concept of harassment
may be defined in accordance with the national laws and practice of the
Member
States.” There
is a difference here. Instead of violating dignity or creating a
hostile environment being alternatives, in the directive they are
cumulative. To prove harassment under the EU definition, it must be
shown that the conduct violated dignity and created an offensive
environment, which is clearly a higher
test.
10
am I
do not claim to be an expert in this area, but I am curious about
whether the Solicitor-General can explain why, in implementing the 2000
directive, the wording was altered in this important way. It is
important, because it is obviously easier to prove harassment under the
UK test than under the EU test. For example, if I cannot persuade an
employment tribunal that someone violated my dignity, I might still be
able to persuade it that the person created an offensive environment.
In other words, under the UK test I get two bites at the cherry,
whereas the EU test would require me to prove not one but both limbs
before my claim would
succeed. I
do not underestimate the importance of tackling harassment in the
workplace or anywhere else. On Tuesday, we considered the Ladele case,
in which it was clear that the Christian woman involved was poorly
treated by her employers and, at the first instance, the tribunal made
a finding of
harassment.
Emily
Thornberry: That person was a registrar in my
constituency, where a large number of gay weddings, as we call them,
take place. Every day, many gay couples leave the town hall, finally
having been allowed to have some sort of union. This woman decided
that, despite the background in my constituency, her religious beliefs
were more important than those of the people whom it was her job to
marry, by registering their union. She put that above her employment
obligations and, quite rightly, her case was turned down on
appeal—and so it should have been, because she was employed to
do a job and she should have just done it. If she did not like it, she
should have got another job.
John
Mason: I thank the hon. Lady for her heartfelt
intervention, but is there not room in a diverse
community—especially one like her constituency—to allow a
place both for gay marriages and for people’s individual
consciences? Can we not have a society where both those things live
together? Ms
Diane Abbott (Hackney, North and Stoke Newington) (Lab): I
do not want to prolong this argument, but the hon. Gentleman has asked
the Committee a question and I should like to answer it. I am familiar
with the part of London where this took place and
familiar with the community from which that registrar came. I am clear
that some people use their religion as a vehicle for cultural bigotry,
clearly and simply. Precisely because I know those communities well, it
is important to draw a line and say, “You cannot use your
religion to allow your bigotry to affect how you carry out your duty to
the public.” If we do not draw the line, bigotry will encroach
ever more on the delivery of public services. Parliament has to take a
stand against
that.
John
Mason: I thank the hon. Lady for her heartfelt
intervention. We are clearly dealing with a difficult area. If one
thing comes out of this Committee’s consideration of the Bill, I
hope it is that the Government will realise that we are in a difficult
area. That does not mean that we should not talk about this matter, but
the Government need to be wary of trying to restrict religious belief
and practice too much.
I totally
agree that we should come down on bigotry, but the problem is defining
it, because one person’s bigotry is another person’s
belief. Sadly, it appears that, in society, and perhaps in this
Committee as well, it is okay to call religious people bigoted, but it
is not okay to call other people
bigoted. Sandra
Osborne (Ayr, Carrick and Cumnock) (Lab): The hon.
Gentleman represents the Scottish National party on this Committee and
I am beginning to wonder when we will get the SNP view of the
situation. He implies that we should be weaker and should comply with
the EU situation, rather than have stronger provision for this country.
Why is he suggesting
that?
John
Mason: I am suggesting that the EU has set a reasonable
standard. There is a danger that we will either catch out too few or
too many people under the provisions on harassment. It is for the
Government, this Committee and the wider House to judge and decide
where they want that line to be. All I am trying to do is to point out
that there are two different standards, and some people feel that they
are being too easily caught out on the grounds of
harassment. To
return to the previous point, can we allow a person any room at all for
conscience? We do so on the issue of abortion. It is argued that the
registrar should not have the job if she will not perform all the
functions of her organisation, but by the same logic, every nurse and
doctor in this country must carry out abortions. However, we have
decided to allow a bit of freedom for conscience. It seems to me that
we and the authority are surely big enough to do the same in this
case.
Dr.
Harris: I have several points to make, although we are
straying somewhat off the topic of harassment. First, that exemption,
which I support, does not permit discriminatory behaviour. It involves
provision of a service and falls short of discrimination, although some
people might feel that they must go further. It does not involve
picking on people; it involves a
procedure. Secondly,
on the Ladele case, it is only fair to say that what she wanted to do
was discriminate, which is why the employment tribunal found against
her. It is also right to say that the Employment Appeal Tribunal did
not uphold the findings of harassment. It needs to be recognised that
not every sentence and every letter was written as well as it might
have been, but in the end, the council was cleared of that charge. That
is important.
Thirdly, it is
not illegal to be bigoted on any grounds, because that is included in
freedom of belief, but what we try to do is constrain that when it
affects other people, particularly in the workplace. That is why I
think that there is a particular responsibility to protect people from
being discriminated against in the workplace. One does not need to
discuss whether it is cultural bigotry or not—I am sure that the
beliefs are sincerely held—but there must be some protection for
the victims of that belief, if I can put it that
way.
John
Mason: Yes, and I see Ladele as the victim in that
situation. She might not be the only victim, but I certainly see her as
one.
Mr.
Boswell: Does the hon. Gentleman not agree at least that
the major test in terms of the service users—in that case, the
gay couple who wished to recognise and celebrate their relationship in
a civil partnership—is whether they are able to use the service?
If the registrar is the only registrar in a local authority area and
such a couple are unable to discharge their wishes because there is no
other person who can fulfil them, that perhaps makes the case
significantly different from whatever reservations of conscience an
individual registrar might
have.
John
Mason: As I see it, a health service must provide
abortions and a local authority must provide registration of civil
partnerships. The organisation must provide all those services, but I
do not see that it automatically follows that every individual in that
organisation must provide every
service.
Several
hon. Members
rose—
John
Mason: I am happy to give way, but I realise that you do
not want to spend all day on this matter, Mr.
Benton.
Lynne
Featherstone: This is a difficult area, and we are trying
to get the balance right, but as discrimination law has advanced so far
as to bring into play factors that did not exist before, it is
important that we get it right. That extends to a whole range of
issues. There might be people who do not wish to police a gay march, or
firemen who will not attend certain incidents. On the execution of
public duty, it is important that we make it clear here and now that
carrying out public services cannot be a matter of conscience in the
way that the hon. Gentleman might wish. That is not signalling against
a genuinely held conviction or people’s conscience; it is a
necessity in the modern age. People with such convictions might
ultimately make different choices about their
careers.
John
Mason: The logical extension of that is that anyone
with a conscience on certain issues, whether religious or otherwise,
will be squeezed out of public services. Anyone with a serious problem
of conscience will no longer be able to work at a state school or a
public hospital. Surely we want a more diverse and inclusive society
than that.
Emily
Thornberry: Perhaps the hon. Gentleman will accept the
argument in these terms: a registrar’s duty is to ratify a
contract that is justified in law passed by Parliament. Parliament
passed a law allowing civil union between gay couples, so it is her job
to ratify that contract. If she does not like the law, she has to get
another job—she has to move out and do something
else.
The
Chairman: Order. Before the hon. Gentleman replies, let me
say that we are in danger—we are not quite there yet—of
discussing the merits of the case concerning the registrar, which is
not part of the amendment. It is fair enough to use examples, and I
have no objection to that, but I do not want the debate to be any more
personalised. We are moving in that direction—I can sense it
coming—so I want to add a cautionary note that we must not
personalise these issues by referring to a specific case. We should
keep to the merits or demerits of amendment
38.
John
Mason: Thank you very much for that guidance,
Mr. Benton.
Let me try to
finish the point. I take the point about the legal duty, but I see the
legal duty to provide the service as being primarily on the local
authority. We will touch on schools later, and there are similar facets
there. As I see it, however, every individual in the authority does not
necessarily have to carry out every duty, and that is clearly the case,
because some people do one job, while others do another job. If the
authority had only one registrar, there would be more of a
problem—sorry, I should not have mentioned the registrar.
However, if lots of people do the same job, it is possible for them not
to carry out every duty.
Dr.
Harris: I am grateful to the hon. Gentleman for giving
way, because there are a couple of important points. If the local
authority’s charter says that its employees will not
discriminate on grounds of race, sexual orientation or whatever in the
delivery of services, the authority has to be able to live up to that
charter without employees saying that they want to opt out without any
come-back.
Through the
hon. Gentleman, I would also like to say to the hon. Member for
Daventry, for whom I have huge respect and genuine affection, that it
is not acceptable to say that everything is all right as long as
someone else fulfils the duty. Someone may have sincerely held beliefs
that mixed-race marriage is wrong, and one could respect those beliefs
by saying, “All right, you don’t have to do the marriage,
because no one else has those views.” However, it would still be
wrong for a public authority to give
credibility—
Emily
Thornberry: Will the hon. Gentleman give
way?
Dr.
Harris: I am intervening on the hon. Member for Glasgow,
East, so the hon. Lady will have to intervene on him. It would still be
wrong for a public authority to give credibility to a prejudice,
because that would give it the green light. Even if some forms of
discrimination are sincerely held beliefs, we should not allow them to
be exercised.
John
Mason: I must make some progress or I will get in trouble
with the Government Whip.
Emily
Thornberry: If I undertake not to interrupt the hon.
Gentleman again, may I just make one last point? A high number of
marriages end in divorce, and a registrar might have firmly held
beliefs that someone should not enter into a second marriage after they
have been divorced. If they began to discriminate on that
basis—even if they were one of five—and other registrars
held that view, a large number of people in my constituency would be
unable to get married.
John
Mason: Even most religious people would accept that
marriage is perfectly acceptable after a divorce, so that is a bit of a
red herring.
Mr.
Boswell: In the spirit of the last two interventions, will
the hon. Gentleman at least concede that, in a sense, we are not
pursuing absolutes in this matter, whatever people’s consciences
are? There will be some quite proper reservations about the employment
in a public job of persons who, for example, support a minority or
extremist party, and that is defensible in certain conditions. My
concern is that people should have the widest possible freedom to
exercise their conscience as long as, and to the extent to which, it is
consistent with the discharge of the public authority’s duties
and its provision of public services. That is a difficult balance to
find, but it is not an absolute
one.
10.15
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