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Session 2008 - 09
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General Committee Debates
Equality Bill

The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, John Bercow, David Taylor, † Ann Winterton
Abbott, Ms Diane (Hackney, North and Stoke Newington) (Lab)
Baird, Vera (Solicitor-General)
Baron, Mr. John (Billericay) (Con)
Boswell, Mr. Tim (Daventry) (Con)
Brown, Lyn (West Ham) (Lab)
Drew, Mr. David (Stroud) (Lab/Co-op)
Featherstone, Lynne (Hornsey and Wood Green) (LD)
Foster, Michael Jabez (Parliamentary Secretary, Government Equalities Office)
Griffith, Nia (Llanelli) (Lab)
Harper, Mr. Mark (Forest of Dean) (Con)
Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
Hesford, Stephen (Wirral, West) (Lab)
Howell, John (Henley) (Con)
Mason, John (Glasgow, East) (SNP)
Osborne, Sandra (Ayr, Carrick and Cumnock) (Lab)
Penrose, John (Weston-super-Mare) (Con)
Sheridan, Jim (Paisley and Renfrewshire, North) (Lab)
Thornberry, Emily (Islington, South and Finsbury) (Lab)
Alan Sandall, Eliot Wilson, Committee Clerks
† attended the Committee

Public Bill Committee

Thursday 18 June 2009


[Ann Winterton in the Chair]

Equality Bill

Clause 24

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.
Dr. Harris: The conjunctive.
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 Solicitor-General: I shall try not to tease the hon. Gentleman again.
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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