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Dr. Harris: Will the hon. Gentleman not accept that that is a statement that the right not to be discriminated against in the receipt of a public service—on whatever ground, because a religious person could want to racially discriminate—always trumps the right of someone who is delivering the public service to manifest their religious belief in a discriminatory way? That is nothing to do with religion versus sexual orientation; it is to do with the right not to be discriminated against versus the right to discriminate while delivering a public service.
John Mason: I would word it slightly differently. I suggest that the right not to be discriminated against applies to both the gay couple and the employee. The gay couple have a right to have their relationship registered and the employee has a right not to be discriminated against by their employer. That is what I am trying to raise in the Committee. Ultimately, it is for Parliament to decide how to bring together those two apparently conflicting examples of being discriminated against.
Dr. Harris: Let us say that there was a registrar with British National party sympathies. Let us suppose that, because of their strongly held beliefs, they did not want to register gay couples. Would it be right for the council to say, “All right, we’ll schedule you something else,” or would the council be right to say, “No. Whatever your views, you have to do your job”?
John Mason: At the beginning, we discussed the link between sexual orientation and sexual behaviour, and the link between religious belief and religious behaviour. That is what I am discussing now. Clearly, I am not trying to deal with the separate question of what happens when someone is in the BNP and a racist.
Mr. Mark Harper (Forest of Dean) (Con): Looking at the detail of the hon. Gentleman’s proposals, and thinking back to a debate on a previous clause, I remember that he raised the issue of how, in such a circumstance, the two different sides—employee and management—behave and how they deal with and resolve the clashes of rights. Does he think that a proposal such as his amendment 49 would effectively get those public bodies to think a little harder about how they manage those clashes of rights? Perhaps they would still have the same outcome, but they might get there a little more sensitively and have at least made a better effort at balancing those competing rights.
John Mason: I appreciate that intervention, because the hon. Gentleman put it very well—getting people to think a bit harder. That is why I was keen to be part of the Committee and to see the provision reflected in the legislation and put into effect by the public bodies concerned.
The lawyer to whom I referred says that although equality laws are supposed to protect religious believers from discrimination, case law has tended to place religion at a disadvantage compared with other protected characteristics. Michael Rubenstein, publisher of Equal Opportunities Review and by no means sympathetic to Miss Ladele’s position, has said that he, too, believes that the Employment Appeal Tribunal ruling is wrong.
The view seems to be that since the law requires public authorities to provide civil partnerships, a registrar who does not feel able to do that should get another job. However, we do not take that view with teachers. Schools are required to provide religious education and, as was mentioned the other day, to provide a daily act of collective worship that is
“wholly or mainly of a broadly Christian character”.
That is a legal requirement placed on a public authority, just as the Civil Partnership Act 2004 is a legal requirement placed on a public authority. Does that mean that all teachers must take part in fulfilling that duty? No.
Sections 59 and 60 of the School Standards and Framework Act 1998 specifically allow a teacher to opt out of providing religious education or participating in collective worship, which is quite right. That is the pluralistic society that I am looking for. The law creates space for atheists and for people of differing religious convictions not to be compelled to take part in promoting things to which they conscientiously object. Why can we not do the same for issues of religious conscience in other settings?
John Mason: On that point, I am perhaps more in agreement with the hon. Gentleman than I usually am. On whether there should be religious worship in schools and his reference to the maths teacher and so on, I broadly agree with him. My point is that in other parts of legislation there is scope for the individual to have a little freedom of manoeuvre—that is what I am asking for here. I am not seeking a “get out of jail free” card, which would make it impossible for a local authority to fulfil its functions, but simply some reasonable accommodation for individuals. The opt-out works well for teachers, and pupils do not suffer. Why could the same not be true for registrars?
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My amendment would focus the minds of decision makers in local authorities on the need for such give and take in all their functions. Even if the public sector duty does not apply specifically to employment, it would affect the culture, which the Minister is very keen on doing through the Bill. There is a danger that, without my amendment, the new duty could be used against religion, pushing it further out of the public square. Leaving sexual orientation aside, there are lots of stories about how existing equality requirements are used to remove expressions of religious faith from the public square.
Oxford city council was criticised in November last year for deciding to hold a winter light festival in the city instead of traditional Christmas celebrations. Interestingly, the strongest criticism of the council came from non-Christian religious leaders.
Dr. Harris: The hon. Gentleman mentions my constituency, so I rise to support the actions of the Oxford Inspires group. The event was not a substitute for Christmas light celebrations at all. That was a typical myth produced by one of the newspapers, and it has been denied. Everyone in Oxford who is aware of the facts accepts that that was not so. The allegations about Winterval are exactly the sort of thing that we are likely to see if this public sector equality duty is red in tooth and claw regarding religion or belief. We should downplay that aspect in respect of the public functions so that public authorities can get on with delivering what is required, rather than have scare stories about Christmas lights being taken down.
John Mason: I am happy to accept that the hon. Gentleman’s knowledge of the detailed case is greater than mine. All we are trying to say is that there is a tradition of Christmas and Easter—and Muslim festivals as well—which we are all happy to celebrate or, at the very least, happy to allow other people to celebrate. We do not have to water everything down to a minimalist secular position.
People over-interpret concepts of religious equality as requiring the eradication of religion, especially the traditional religion, which in our case is Christianity. There needs to be a rebalancing of how public authorities handle the different equality streams. Good relations between strands are not possible where religion is ignored. I feel, as do others, that something needs to be done, and where better to start than in this Bill?
Amendment 249 would leave religion out of the public sector duty altogether. If the proposal had been to leave out religion and sexual orientation, that would have had the virtue of avoiding the main clash of rights that I am concerned about. However, leaving out only religion, yet again, relegates religious people. The explanatory wording to the amendment talks about removing the duty
“on public authorities to have regard to promoting equality of opportunity between religious people”,
as if it is just about stopping inter-religious strife, but it is also talking about potential strife between religious people and others. I hope that the Minister will not accept the amendment.
The Solicitor-General (Vera Baird): Let me speak to Amendment 249, which would provide that public authorities would not be required to have due regard to the need to advance equality of opportunity between people who share a religion or belief, and those who do not share such a religion or belief.
The duty is about getting public authorities to think about whether there is any evidence of individuals suffering disadvantage, and then to think about whether there is anything that they can or should do to tackle that. My hon. Friend the Member for Stroud put his finger on that at the outset. He was right that that is the primary aim.
We have approached this from the position of finding out whether there is any evidence that some people with religious beliefs are suffering disadvantage or have different needs. That is a narrow question, and we think that the answer is yes. Let us take different needs first. Because of their religious beliefs, some members of religious groups might have different needs when it comes to accessing or engaging with public services. For instance, to cite a tried and tested example that nevertheless makes the point, some Muslim women might not feel able to receive medical care, particularly gynaecological care, from a member of the opposite sex. For a primary care trust or a hospital trust not to deliver that service to them would not be discrimination, and would not therefore be dealt with under paragraphs (a) or (c). This is about equality of opportunity. Given that there are poorer ante-natal, post-natal and infant health outcomes for Muslim women now than for anyone else, would one not want the local authority or PCT to acknowledge that need and to ensure that it was met?
Dr. Harris: Will the Solicitor-General give way?
The Solicitor-General: No, not all. How long have we listened?
The hon. Member for Oxford, West and Abingdon wanted to know whether need involved an objective element. This is very straightforward. The duty is on the public authority, which will have to decide whether there is a need to be met and exercise due regard in making that decision. It will have to behave and determine the issue in an appropriate and proportionate way. Evidence will be required; it will not be possible for some fatuous or supposed religious organisation to suggest that it, too, should have something that other people have without any evidence at all. The hon. Gentleman will say that there must be equal provision for every strand of religion. He says it again and again—and again and again and again. That simply is not the case. We are talking about need. This is not a difficult provision to understand, and I do not know why it causes such a lot of anxiety. However, it does—and has done so about eight times now.
Another aspect to advancing equality opportunity is that of encouraging participation in public life. We want local authorities to think about how they can encourage Muslim women. I think that nine Muslim women are councillors in England and Wales. Local authorities would be encouraged to use the provision to ensure that they brought in more people. If we accepted amendment 249, we would return to a hierarchy of inequality that would bleed into the other limbs. For instance, if the current unfair patchwork of coverage survives, Jews and Sikhs would still be covered under the race strand, whereas Christians, Muslims and humanists would not.
There seems to be a sense among Opposition Members that gay people and religious people hate each other relentlessly all the time, that that happens throughout life, and that every day is full of perpetuated hatred between those groups. That is a wholly unrealistic position. We took a lot of evidence from witnesses from Stonewall, and the hon. Gentleman tried to prod them into saying that there were deficiencies in the Bill and that they were insufficiently protected as gay people. They repudiated that entirely and try as he might—several times—they simply would not have it. Stonewall’s “Living Together” report makes it clear that about 84 per cent. of people of faith do not think that homosexuality is morally unacceptable in all circumstances. Let us be more realistic with our submissions and they might be a bit shorter.
Amendment 297 would require public authorities not to inhibit free expression when complying with a duty. Subsection (5) is clear about where the duty sits in relation to the law. It does not trump or override the law, but operates within its limits. A public authority will have to obey the law and ensure that it does not infringe the lawful rights of anyone, whether intentionally or otherwise. The Human Rights Act 1998 enshrined the right to freedom of expression in law. Although it is a qualified right, people are free to think and say what they like within the boundaries of the law.
There are powerful reasons why we need these provisions in the Bill. They will form the leverage that we use to transform the culture, and it is a pity that that is not evident to other Committee members.
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