John
Mason: The word “balance” is one that I
like. I hope that the Solicitor-General will take the points made on
board. This is an incredibly difficult area. I had better move
on.
The reason
for asking the Solicitor-General to explain the position is the concern
in some circles that specific laws against harassment, especially if
they are widely drawn, may create a risk to free speech. I presume that
there is a risk that someone could claim that mere disagreement with
them over an issue related to a protected characteristic had created an
offensive environment or made them feel violated. However, those are
subjective terms.
The law on
harassment is controversial. In 2005, the Government considered
introducing harassment on the grounds of religion in the provision of
goods and services. Since then, they have undertaken a discrimination
law review and they concluded that the Bill should not introduce
harassment on the grounds of religion or sexual orientation in the
provision of goods and services. Indeed, clause 27(8) specifically
excludes those grounds. I assume that the Government saw that
introducing the right to sue for offending feelings while receiving
goods or services had the potential to unleash a wave of
litigation.
Harassment
has a more limited application in the provisions of goods and services,
but on employment it applies to all strands. One obviously has less
choice in the working environment than in the marketplace. For example,
if one does not like the atmosphere in one shop, one can go to another;
but it is much harder to switch if one does not like the atmosphere at
work. If we are to have a harassment law on all grounds for
employment, and if we are to apply it also to the provision of goods and
services and some other grounds, we must be careful about the threshold
in order to prevent misuse. The definition of harassment is already set
about with limitations. The question is not whether we have
limitations, but what they should be. Why is it necessary for us to go
further than the
EU? The
Solicitor-General: I intervene to deal with the hon.
Gentleman’s point while he is still on his feet. He is right
that the EU test is narrower than ours. He said that our wider test, as
he characterises it, has been in our law since 2003, although we think
that it has been in our law since 2000. We would break the principle of
non-regression if we narrowed it to the EU test. Does he have an answer
other than that which is
prohibited?
John
Mason: I raise these points for discussion. If it is
impossible to wind things back, I must accept it. However, I am
grateful for the clarification provided by the Solicitor-General,
although perhaps she is not aware of why, in 2000 or 2003, a different
definition was brought
in. Finally,
and I hope briefly, I touch on the amendments tabled by the hon. Member
who represents Abingdon—I wish to save time by not saying the
full name of his constituency, or will that upset the people of west
Oxfordshire? I wish to speak to amendments 230 and 231—and
possibly 232 and 233, which are related. They seek to extend the
harassment provisions to cover religion and sexual orientation in the
provision of public services. I am naturally interested to see that the
definition uses the “and” formulation of my amendment
rather than the “or” formulation used by the Government.
However, given what I have said, I obviously oppose extending the Bill
to cover harassment on those grounds.
I shall touch
on some of what the hon. Gentleman said. He mentioned the question of
schools, and specifically mentioned homophobic bullying. I am sure that
we are unanimous in agreeing that such behaviour should not happen. I
know that schools—both faith schools and other kinds—are
desperately trying to tackle bullying of all kinds, and I fully support
them in that. I understand that faith schools in England and Scotland
want to teach, for example, that sex outside marriage is wrong; indeed,
that forms part of the ethos of such schools. However, we do not want
such a statement to be thought of as bullying. For example, in Glasgow
every child lives in the catchment areas of two schools, so every
family and every child can choose between a faith school and a secular
one.
Emily
Thornberry: What, therefore, would happen to a young man
whose Catholic parents want him to go to a particular school, but who,
at the age of 13 or 14, decides that he is gay, and finds himself
bullied by teachers who tell him that there is something profoundly
wrong with him because he wants sex outside marriage?
John
Mason: There is a difference between making a statement
such as, “I believe it is wrong to have sex outside
marriage,” and bullying. The two are not the same. I
hope—I certainly have faith in Glasgow schools of all
descriptions—that schools are attempting to tackle bullying at
all levels, but that is not to say that they accept all forms of
behaviour as just being okay.
Dr.
Harris: The hon. Gentleman is saying that there are some
schools—state schools, state-funded schools—providing
that public service that want to teach that gay sex is always wrong.
They can cover it on the basis of sex outside marriage but, as the hon.
Member for Islington, South and Finsbury said, that means that gay sex
is always wrong, always sinful and something to be condemned, to put it
mildly. I cannot believe that this Committee, this
House—certainly this applies to my party—and the
Government think that that is acceptable. A school must not do that. A
school can say that certain organisations or religions believe that,
but it has a terrible effect on young people who are gay, lesbian,
bisexual and so on.
The evidence,
which I have not read out, although I could, shows that the feeling
that one is being bullied and instances of bullying are a particular
problem in faith schools, precisely for the reasons that the hon.
Gentleman gives. It is not right for him to hide behind the argument
that their ethos says that sex outside marriage is wrong. That means
that being gay is always wrong if people express it sexually, which
every gay person is entitled to do within the
law.
John
Mason: Our policy—this is our party policy, for the
benefit of the hon. Member for Ayr, Carrick and Cumnock—is that
if sufficient parents want a particular type of school, be it
religious, non-religious or whatever, we would aim to provide that type
of school. It could be Catholic or we could be talking about other
Christian denominations. We have at least one Jewish school in Scotland
and we are looking at Muslim schools in Scotland as well. Those would
be schools run by the public
sector. I believe in
diversity. If there is one thing that I am trying to get across in
Committee, it is the idea of diversity, of live and let live, of being
inclusive and of allowing different views. We do not have to have all
schools saying that marriage is unnecessary or not particularly a good
thing. We can have some schools saying that marriage is a good
thing. We can have other schools taking a more relaxed view
about the issue. Parents would have a certain amount of choice about
which one they wanted their child to go
to. To
take another example, is it unrealistic to imagine that someone could
walk into a parish church or faith school on polling day, cast their
vote and then claim to have been religiously harassed while in receipt
of public services because of the presence of a cross or
Bible
verses on the walls? The amendment is dabbling in dangerous territory,
and the Government have taken the wise course and left that
alone. The
hon. Member for Oxford, West and Abingdon seems to be treating religion
or belief less favourably than other characteristics. His harassment
test for sexual orientation and for gender reassignment in his proposed
new subsections (2A) and (2B) in amendment 231 is
an “intimidating,
hostile, degrading, humiliating or
offensive” environment,
but for religion in subsection (2C), the test
is “intimidating,
hostile, degrading or
humiliating”. “Offensive”
has been left out. That seems a little
inconsistent.
Dr.
Harris: I must take issue with the hon. Gentleman.
Actually, the amendment would provide protection for religions. He
gives the example of a cross or another religious symbol in a school
that is used on polling day. That should not be forced to be covered up
just because another public service is being delivered there. In fact,
I would find it hard to argue that it was offensive. That is why my
definition leaves out “offensive” from the idea of being
harassed on religious grounds—to protect the religious freedom
of other people. In fact, the motivation is opposite to that which he
suggests.
John
Mason: I can deal only with the words that the hon.
Gentleman uses, but I am happy to accept his reassurance about the
intention. He also used the term “thin-skinned”. I think
that he was perhaps referring to religious or similar people. The word
“bigoted” has already been used—again aimed at
religious people. I find both difficult. If I was using those words
about other people, people would rightly be offended, but there we
go. I
am grateful that the Minister has said that she does not want to create
a hierarchy of rights. I hope that she will reject amendment 231 for
that reason. I do not agree with harassing anyone, but we have to be
wary of turning schools, if this is what is intended, into a
battlefield for competing world views. The Government seem to realise
that there is too much scope for causing division, hence clause 80(1)
specifically excludes the
religion—
10.25
am The
Chairman adjourned the Committee without Question put (Standing Order
No.
88). Adjourned
till this day at One
o’clock.
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