The Committee consisted of the following Members:

Chairmen: Mr. Joe Benton, 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

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Public Bill Committee

Tuesday 30 June 2009

(Afternoon)

[Ann Winterton in the Chair]

Equality Bill

Clause 143

Public sector equality duty

Amendment moved (this day): 249, in clause 143, page 105, line 13, at end insert—

‘(2) Subsection (1)(b) does not apply in so far as it relates to religion or belief.’.—(Dr. Evan Harris.)

This amendment removes the duty on public authorities to have regard to promoting equality of opportunity between religious people.

4 pm

The Chairman: I remind the Committee that with this we are discussing the following: amendment 49, in clause 143, page 105, line 32, at end insert—

‘(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic.’.

Prevents public authorities using the public sector equality duty to favour the rights of one group over another.

Amendment 297, in clause 143, page 105, line 32, at end insert—

‘(4A) In complying with its duties under this section, a public authority shall not inhibit lawful free expression.’.

This underpins the need to preserve lawful freedom of expression in public life.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): It is a pleasure to welcome you back to the Chair, Lady Winterton.

I had set out why we were particularly concerned to deal, in our amendment, with the equality of opportunity limb of the positive duty and its relation to religion and belief, not limbs 1 and 3 and limbs A and B of subsection (1). I also explained that, even if subsection (1)(b) survived—my probing amendment would delete it—changes to subsection (3) would be needed, because of the concern about how subsection (3)(b) might work in practice in relation to religion and belief. It may not even be necessary to delete that paragraph; it may be necessary only to qualify it in some way to ensure that we gain the intended benefits without the drawbacks.

I was discussing with the hon. Member for Glasgow, East whether “needs” was an objective term. I am concerned that nothing in the structure will require a public authority to judge whether the needs that are cited, which may be genuine from the point of view of

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the individual or the religious community that claims to have them, are reasonable to meet. Will the Minister clarify whether it is her view that some form of reasonableness test exists in relation to that?

Clearly, having regard to something does not require one to do it, and the public authority may still not consider it reasonable to do. I am concerned that the expectations of individuals who seek to have their needs met may be raised, but that they may not realise that, although public authorities should have regard to something, that wording still allows them to say that, in all circumstances, either it is legitimate for them not to meet those needs or that meeting them would not be the most effective way to deliver services.

Our concerns about this matter are set out by the Equality and Human Rights Commission in its briefing, which seeks to rebut those concerns, and stem to a certain extent from work done and concerns raised by Lord Lester of Herne Hill, who has been engaged in correspondence with the EHRC and has recently published an article, co-authored with Paola Uccellari, in a law journal, setting out his concerns in more detail.

The fundamental questions in relation to the provision are, first, whether there is a judgment about whether the needs are reasonable and, secondly, whether this will lead to a call for and a meeting of the demand for services to be delivered to people on religious grounds. This is different from the other strands, as I was saying when discussing the point with the hon. Member for Glasgow, East, because there are no other grounds on which public services can be delivered, to the same degree, in a discriminatory way. There is no exception in any schedule for services to be delivered on the basis of an ethos specifically to people of one gender, race or form of ability or disability—that is no surprise—but there is a wide exemption in schedule 23 that enables public services to be delivered by organisations of a religious ethos only to users of those services who pass a religious test. That is why, when considering public authorities and public functions, one cannot claim that religion is therefore just like every other strand.

John Mason (Glasgow, East) (SNP): The hon. Gentleman seemed to suggest that no other strand or protected characteristic is allowed special exemption or protection. However, I understand that virtually every strand is. He mentioned disability. Clearly, many organisations, including public authorities, are allowed to favour and help those who are disabled.

Dr. Harris: I was very careful about what I said. I spoke about the structure of the exemption in schedule 23. Of course the Bill allows for services to be provided in specific ways that are appropriate to individual needs. However, schedule 23 is different. The hon. Gentleman must accept that. Paragraph 2(10) states:

“This paragraph does not permit anything which is prohibited by section 27”—

which is about not discriminating in the provision of services—

“so far as relating to sexual orientation,”

but not to religion. That applies to services provided on behalf of a public authority or

“under the terms of a contract between the organisation and the public authority.”

Things are entitled in relation to religion that are not entitled in relation to sexual orientation, which is peculiar.

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There is a wide exemption for religion elsewhere in schedule 23, relating to religious ethos. A restriction is permitted

“relating to religion or belief only if it is imposed...because of the purpose of the organisation, or...to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.”

That is a pretty wide provision that is not allowed in respect of any other characteristic—for example, sexual orientation.

Before we broke for lunch, I was about to explain another reason why religion is different. The hon. Member for Glasgow, East said that to exclude religion and belief from part of the positive duty provision would be setting it aside for different treatment from the other strands. However, it is already treated differently by legislation and by the House, which voted to have different approaches for religion and race in respect of incitement to hatred, even though the mischief makers might be similar, because it recognised that religion was different—it relates to belief, which is not as innate a characteristic as the other strands.

Inevitable conflicts arise between different religions because of freedom of speech. That does not exist for the other strands. One person’s strong expression of religious belief is another religion’s blasphemy. Long may that continue. I am a strong believer in the right to religious belief and the right to express religious belief, even if it offends other people. That is the nature of having free speech for religions. However, one cannot say that about any other strand to the same extent. My point is that religion is already recognised to be different. The organisations that have supported the hon. Gentleman’s amendments were on my side of the argument—they may say that I was on their side of the argument—when we debated the need to ensure that incitement to religious hatred was treated differently from the other strands. I stress that there is precedent for this.

The arguments about why there is a problem boil down to four or five areas that I will go through. I will try to deal with the rebuttals that might come. The first problem is that a duty to advance equality of opportunity for religion or belief may inspire and entrench resentment, rather than dispel it, even though that may not be the intention. It will engage public authorities, such as local councils that are already overstretched, in matters that should not concern them and that are a distraction to their main mission. There is a real problem that organisations or individuals of a certain religious belief will seek to say, “Why can’t I have this service delivered to me in the way that I want? You have a duty to do it.” Such cases will occur quite frequently, and the corollary will be absurd calls for local authorities not to engage in Christmas celebrations because they do not advance equality of opportunity across all religions.

Essentially, subsection (3)(b) involves the meeting of needs on an equal basis. The Government may not intend to cover specific and unique support by a public authority for a religious festival such as Christmas, which is the most important festival of the most commonly held religious belief in this country, but that is what may flow from the measure. That already happens, and the danger is it will happen even more.

Another concern is that there will be a blurring of the boundary between needs that are based on holding a religion and needs to implement, or see manifested

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more widely, the consequences of that religion. For example, public authorities may be asked, regardless of whether it is the intention of the statute, to make extra provision to allow employees to discriminate in line with their religions beliefs on the basis that they have that need. I do not doubt that many religious people genuinely feel that they have a need not to be forced to register gay partnerships. The Minister has been clear—perhaps not as clear as she could be if the measure was set out in statute—that it is unacceptable for an employee of a public authority performing a public duty to discriminate on another ground in the exercise of those public functions. However, there will be calls for that based on the public duty, which would be regrettable given that, even before we have the public duty, there are already those calls that cannot be justified.

Another concern is that organisations and individuals will argue that public authorities need to support their religion in the way in which the state supports the established Church and other Churches more broadly through certain exemptions for places of worship and so forth. If the authorities do not support their religions in cash terms, they will argue that it is not equality of opportunity.

Naturally, many of the views and opinions held by religious people are dictated by religious doctrine, and they relate to areas of public policy. On the basis of public sector duty, does the Minister understand the risk of public authorities being asked to have regard of some religions that do not want to have gambling in the local authority area or sex education in state-run schools?

If evolution is being taught in schools, some may argue that creationism should be taught as well. Again, it is hard to argue that that is a need. Moreover, it is hard to argue that that is not a need that is different from the needs of people who do not share the belief, or the “relevant protected characteristic”. I can see nothing in the provision’s construction that will give an obvious defence to local authorities that will enable them to strike out such a claim at the outset. We need something that can be pointed to in statute that shows that the public authority can say, “No, we are not going to do that. It is not justified.” If we do not have that, the public authority will have to say, “Okay, we will investigate it and see if we can reach a compromise, and we accept that you have a need that is specific to your religion” and more and more claims will be made under the duty.

I should be grateful to the Minister if she told us how a local authority and an education authority will respond to an argument made under subsection (1)(b) and (3)(b) that their need to have creationism taught should be met on the basis of equality of opportunity. We have already debated the fact that people cannot claim discrimination if creationism is not taught in the curriculum, because the curriculum is exempted from such claims. However, I am not talking about that. What comes into play here is the positive duty outside of simply not discriminating

4.15 pm

A further concern—my real one—that I hope the Minister will be able to address at some point is that religious organisations funded by public authorities are involved in the provision of public services. We know that such organisations claim that they need to provide services for a particular group of people, which I can

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accept in principle, or that, because of their ethos, doctrine or the need not to offend people who are of their belief, they want the right to discriminate in the provision of public services on the grounds of religion and belief. That means—and we can see it happening now—that public services are delivered by religious organisations under contract to a public authority to specific religious groups. Such organisations say that they are catering only for those religious groups. I have concerns about that, which I will discuss in relation to schedule 23.

My point is that if we couple that with the right of everyone to have their needs met, what is to stop every religious community saying, “Well, you fund this organisation with cash to provide this service to their people. We think you should provide this service to our people through our organisation.” Again, I cannot see how the local authority will be able to resist that request or, at least, not feel under great pressure to do so and, indeed, to defend itself in court if necessary. Such a measure will have created the start of what I have described as the trend towards the balkanisation of services.

We are asking for some stop on that process—perhaps through some restriction on discrimination on the grounds of religion in respect of the exemption permitted under schedule 23. I say to the hon. Member for Glasgow, East that that would still allow the sort of provision that is already allowed in other areas, but not under such a wide exemption. Alternatively, there should be some stop within the measure that enables public authorities to have due regard to the matter. I know my feelings about the splitting up of public services in that way are shared by many people, especially in the House of Lords.

I have already said that there is a concern that the provision will be misunderstood by religious organisations. They will say, “If there are Christmas celebrations, we should be entitled to our own celebrations funded and backed by the public authority.” I do not think we should go down that path. Perhaps the Minister thinks that that is a path down which we want to go, but sooner or later one has to draw a line.

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Prepared 1 July 2009