 House of Commons |
Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks † attended
the Committee Public Bill CommitteeThursday 18 June 2009(Afternoon)[Ann Winterton in the Chair]Equality BillClause 24Harassment
Amendment
proposed (this day): 230, in clause 24, page 17,
line 26, at beginning insert, ‘Subject to
subsections (2A), (2B), (2C) and
(2D),’.—(Dr. Evan
Harris.) 1
pm Question
again proposed, That the amendment be
made.
The
Chairman: I remind the Committee that with this we are
discussing 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.
The
Solicitor-General (Vera Baird): Welcome back to the
Committee and the debate, Lady Winterton. Amendments 230, 38 and 231
would make various changes to the definition in the applicability of
harassment.
At the outset, I would like to deal with the question raised by the hon.
Member for Oxford, West and Abingdon about why marriage and civil
partnerships are excluded, because that point stands aside from the
main thrust of the arguments.
We have
already rehearsed the fact that the document “Discrimination Law
Review” found little evidence of discrimination to justify the
inclusion of marriage or civil partnership in the Bill as a protected
strand, and there really is no need to include harassment. The hon.
Gentleman also asked why pregnancy and maternity were not protected
against harassment, but if a woman was subjected to that, there would
be harassment related to her sex in any case, so there is no need to
cover it in this provision. I hope that those two side points have been
dealt with.
I shall now
discuss amendment 38 as its reach is smaller and it is the most easily
dealt with. As the hon. Member for Glasgow, East has said, British
discrimination law contains a harassment provision. To show harassment,
a person must show either that their dignity has been violated by
unwanted conduct or that an intimidating, hostile, degrading or
offensive environment has been created as a result of something. It is
either/or—the disjunctive approach. By contrast, the definition
in European equal treatment directives requires both limbs—the
conjunctive approach.
It is
difficult to see how the two concepts differ in practice. Conduct that
violates somebody’s dignity will almost always create an
offensive environment for that person. Therefore, if there is an
extension by our treatment of those two limbs as disjunctive, we regard
that as a small extension. That is the first point. The point that I
rehearsed with the hon. Member for Oxford, West and Abingdon in an
intervention is that our disjunctive approach, which is arguably a
touch broader, was introduced to law as long ago as 2000 when the Race
Relations Act 1976 was amended to implement the relevant
European directive. He gave another example of a different branch of
equality law where that disjunctive approach was
present. To
use the conjunctive approach—the European approach, which is
perhaps slightly narrower—would be regression. We would be going
back from what we have already done and we are not allowed to do that
under the principle of non-regression. That is another reason why we
cannot implement the proposal.
Dr.
Evan Harris (Oxford, West and Abingdon) (LD): As the
Solicitor-General will be aware, I agree with her. Such a move would
indeed be regression because it would narrow the definition. I want to
probe her further on this question as it is relevant to my
amendments. I
believe that the conjunctive approach would be a significant narrowing
because violation of dignity is a personal and subjective thing.
Whatever one thinks of the objective test and the extent of that in the
legislation, it is harder for violation of dignity to be dealt with
subjectively than it is to deal with the environment question. One can
see evidence of an environment and that can be objective, whereas
one’s own dignity, and whether it has been violated, is much
more difficult to judge. I agree that there is a difference, but does
the Solicitor-General accept that, on that basis, it might be more than
just a slight difference?
The
Solicitor-General: No, I do not think so. It is
broader, but not significantly so. It must stay broader, because we
cannot regress—I, for one, do not want to regress that in any
way. Next,
I will deal with the issue of objectivity and subjectivity that the
hon. Gentleman raised, as it fits in with amendment 38 and the ones
that he tabled. To reassure the hon. Member for Glasgow, East, if we
are broader in this respect than is Europe, there is an additional
element in our law, which is the objectivity that is required where
harassment is not deliberate or intended. That is clear in clause
24(3), which the hon. Member for Oxford, West and Abingdon referred
to. For
conduct to be regarded as harassment, one must take into account the
factors involved: the perception of the victim, all the other
circumstances of the case and, importantly, whether it is reasonable
for the conduct to have the effect of harassment according to the
definition in clause
24(2). I
want to reassure the hon. Member for Glasgow, East—this is on
another limb—whose fear is that it is too easy to be harassed,
which could restrict in particular religious freedom of speech, which
is his interest. He will be reassured to know that that extra part is
in
there. Regarding
the objectivity of the test, the hon. Gentleman pointed to the fact
that the definition of perception in clause 24(3) is couched slightly
differently than in the old law, and that is right—we have tried
to make it clearer. As he said, the elements of reasonableness are now
separated, which may flag up the issue to some extent, but the
important thing is that hypersensitivity cannot be
used. The
hon. Gentleman feared that a person who was hypersensitive to a
religious problem would say, “It is perfectly reasonable for me
to say that that is harassment because I am hypersensitive, so the
‘reasonable’ test is passed.” That would make it a
subjective reasonableness test, which it is
not.
Dr.
Harris: I welcome the Minister’s comments and give
more strength to her arm in making the issue clear. This will be
helpful. These issues have been subject to debate in the literature and
this is a useful opportunity for her to clarify the Government’s
intention.
The
Solicitor-General: In fact, this is already in domestic
law. I am sorry to fumble, but for just one moment I lost the page
where the case is set out.
Dr.
Harris: I think this is useful because, as I understand
it, the previous provisions seemed, as I said, to have one paragraph
that did not seem clearly to separate the perception of B from the
test. In “Equal Opportunities Review”, among other
places, the matter has always been raised as a concern—a
sensitive person might consider that the reasonableness test relates to
them. I am interested to hear what more the Minister can say on
that.
The
Solicitor-General: I am grateful to the hon. Gentleman for
his intervention. The lesson learnt is not to eat one’s lunch
while still at the papers, or two pages could get stuck
together.
To reassure
the hon. Member for Glasgow, East, the test has been set out in a case
called Driskel v. Peninsula Business Services Ltd. The judgment
said that the facts of a case in which harassment is
alleged “may
simply disclose hypersensitivity on the part of the applicant to
conduct which was reasonably not perceived by the alleged discriminator
as being to her detriment... no finding of discrimination can then
follow”. What
we have done is replicate the current law. The reassurance is helpful
to make it clear that although clause 24(3) says that the perceptions
of B, the victim, are an important factor, the question whether it is
reasonable to regard something as harassment is not for the victim to
decide—it is an objective test. I hope I have provided
reassurance on that
aspect. Amendments
230 and 231 together make up what I am afraid would evolve into a
massively complex picture. They would provide protection against
harassment on the grounds of sexual orientation and the grounds of
religion or belief in the provision of services in exercise of public
functions by public authorities. The definition of sexual orientation
would be the disjunctive
definition.
The
Solicitor-General: Forgive me, the hon. Gentleman is
right. So, that would be narrower and it would mean that the
complainant had to show that the harassment had both effects that we
have already discussed. It would be the same for religion and belief,
but removal of the “offensive” adjective in clause
24(2)(b) would result in the second limb of the
test “creating
an intimidating, hostile, degrading,
humiliating” environment.
However, if it was offensive, presumably to the person who was
religious, it would not amount to harassment, so there is a higher test
for the religious. People could have more of a go at the religious
under the hon. Gentleman’s provision than they could someone
else.
Dr.
Harris: To make it clear, as I did to the hon. Member for
Glasgow, East, the amendment would allow more freedom for the religious
to run the risk of offending other people on their religious grounds.
It is not simply aimed at giving less protection to the religious. It
is a religious-versus-religious thing. As we have recognised in other
forms of the law, including incitement to religious hatred, there have
to be higher tests all round so that free speech is not interfered
with.
The
amendment would also extend protection against sexual orientation and
gender reassignment harassment to part 6, which is about education. It
would use the definition of harassment that requires both limbs and
retain the definition of “offensive” in the second limb
of
harassment. In
conjunction with another amendment, amendment 231 would extend
protection against religion or belief harassment to the education
section of the Bill, but using the narrowest definition of harassment
and leaving out “offensive” again. I hope that I have all
those right. They present a massively complicated picture, and one of
our aims is to simplify the law and not make it almost
incomprehensible. We do not want to extend protection for the sake of
harmonisation.
The hon.
Gentleman is keen on harmonisation. It seems he wants everything to be
protected, arguably with the odd exception, but I have promised not to
tease him. We do not want to do that. We want to legislate where there
is a need for it. We do not see any need for any of those
provisions. There
is no question of devaluing sexual orientation or religion or belief.
There is no evidence that people are being harassed because of their
sexual orientation or religion or belief in situations outside work. We
have done a good inquiry on it and we have consulted. We asked for
evidence and whether there was a need for express protection against
religion or belief and sexual orientation harassment in any of or all
the fields of the provision of goods, facilities and services;
education; the management or disposal of premises; and the exercise of
public functions. Nothing came back that convinced us or even started
to persuade us that there was any need for such
protection. I
turn to what the hon. Gentleman called captive communities. I
understand that, as well as the example of prisoners suggested by the
hon. Member for Daventry, but he is really driving at people such as
schoolchildren. If someone is harassed in a shop, they can go to
another shop, but a child housed in school does not have that freedom
of choice. I understand that concern. None the less, we have not had
any evidence that there is any difficulty relating to harassment in
those captive
communities. Before
I come to the question of bullying in schools and homophobic bullying,
let us not forget that the public sector equality duty is in place and
that that has a role in ensuring that public authorities—the
service providers and the performers of public function—will
have to give due regard to the need to foster good relations in respect
of protected
characteristics. Turning
to the hon. Gentleman’s significant concern about bullying and
harassment in school, and whether these proposals are a way to tackle
that, we really do not think there would be any practical benefit. We
think that—not exclusively—most bullying at schools is
pupil to pupil, and what we need to focus on is bullying action plans
to stop that occurring, because the relationship between one child and
another is not caught by discrimination law. Therefore, introducing
that protection would not help anyone to take action against that kind
of bullying.
1.15
pm The
Department for Children, Schools and Families has put a duty on head
teachers to have measures in place to prevent bullying, but the same
Department has guidance for schools on dealing with homophobic bullying
and it also will produce guidance very soon on tackling transphobic
bullying in schools. There is already guidance on bullying in relation
to race and
religion. If
staff in a school treated children in a way that constituted harassment
either because of their belief or because of their sexual orientation,
that would be discrimination and it would be caught by the
discrimination provisions. We simply do not see a gap to
fill. I
hope I have run through this step by step and point by point, and I
hope that the hon. Gentleman appreciates
that these proposals would produce an enormously complex outcome in any
event, but I hope and trust he is
satisfied.
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