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?
Dr.
Harris: That is all backwards. The problem with collective
worship and sections 58 to 60 of the School Standards and Framework Act
is that they create religious discrimination. My position and that of
the Liberal
Democrats is consistent: there should not be that religious
discrimination. If we did not have the discrimination of forcing people
in school, potentially, to deliver a prayer that they did not want to,
we would not have to have the exemption. The hon. Gentleman must
remember that section 60 of the School Standards and Framework Act
allows a state school to sack a maths teacher for not believing in God,
if it is a reserved post. I do not think that he can defend that as a
paradigm of fairness in religious
terms.
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? 4.45
pm 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? There
is a similar argument about opening swimming pools to women-only
groups—Muslim women, for instance, who would not be happy
swimming in scanty swimwear with men around. We would not want a
special swimming
pool demanded by the Muslims, and then one for the Jews, one for the
Catholics and one for the British Humanist Association. Instead, a
special time could be designated when women could swim on their own, as
often happens now. This requires local authorities, primary care trusts
and all public authorities to think about the impact of their policies
on people who have religious beliefs. It certainly does not mean
separate services on demand, and it is fatuous to suggest that it will
lead to balkanisation. Where there is evidence of need, we must ensure
that public services are responsive to that need for the benefit of
people who use the services. It will not lead to balkanisation, let
alone the abolition of Christmas. 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 49
would make explicit the concept of “due regard” by
involving an additional element of ensuring a balance. We think that
due regard, which is central to the operation of the duty, is better.
It requires the public authority to take into account all relevant
factors and arrive at a proportionate decision. Instead of requiring
all that, the amendment would turn the
process into a simple balancing exercise that we would find unwelcome.
Inherent in the concept of advancing good relations is the need to
ensure that one part of the community is not unfairly favoured over
another. One could not describe a public authority as fostering good
relations if it had ridden roughshod in any way over one section of the
community and unjustly prioritised another. There is already a concept
of balance in the duty, and the legislation does not need this gloss.
That would make it a less sophisticated process than the one that we
feel is appropriate for all groups. We do not favour the amendment,
although we understand why it was tabled. 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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