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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 CommitteeTuesday 30 June 2009(Afternoon)[Ann Winterton in the Chair]Equality BillClause 143Public
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) survivedmy probing amendment would delete
itchanges 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
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
disabilitythat is no surprisebut 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.
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
characteristicfor 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
differentit 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 persons
strong expression of religious belief is another religions
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.
Gentlemans amendments were on my side of the
argumentthey may say that I was on their side of the
argumentwhen 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 cant 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
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 clearperhaps not as clear as she could be if
the measure was set out in statutethat 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 provisions 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 concernmy real onethat 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
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 meansand we can see it happening
nowthat 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 processperhaps 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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