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2 Dec 2009 : Column 1180

Amendment 15, page 211, line 2, at end insert

Amendment 198, in schedule 23, page 212, line 11, leave out 'an organisation' and insert 'activities'.

Amendment 199, page 212, line 12, at end insert-

'(2A) This paragraph does not apply to any activity done-

(a) on behalf of a public authority, and

(b) under the terms of a contract between the organisation and the public authority.'.

Amendment 200, page 213, line 9, after 'orientation', insert 'or religion'.

Amendment 31, in schedule 27, page 223, line 32, at end insert-

'School Standards and Framework Act 1998

Section 58(6) and (7). Section 60(4) and (5).'.

Amendment 193, in schedule 28, in page 225, line 14, at end insert -


Section [Caste (No.3)]

Caste discrimination

Section 24 (1A)'.

The Solicitor-General: These are miscellaneous but important new clauses and amendments. Many of them were tabled by the Opposition, but I shall start with the Government ones.

New clause 41 and the associated amendment support the Bill's aim of clarifying the legislation, and we have listened to points made by hon. Members in Committee. The new clause is needed also in consequence of clause 14, which was added in Committee and protects people from dual discrimination.

The amendments are necessary to ensure that, in cases of direct or dual discrimination, the alleged discriminator cannot argue that they are not liable because they share the protected characteristic. Without the amendments a gay man, for example, might dispel an allegation that he had discriminated against another gay man because he himself is gay. That coincidence is irrelevant under the Bill.

We discussed the matter in the eighth sitting of the Committee. The key question was whether, by stating overtly the long established convention that it is immaterial in a case of direct discrimination that the alleged discriminator is of the same religion or belief as the victim, this cast doubt on the situation for other protected characteristics. Our starting point was that it should not have cast doubt because we have merely replicated the law as it applies, uniquely, to religion or belief, and we thought that parallel issues were unlikely to arise. We then considered that the scope for intra-religious discrimination required us to take the action that we have taken.

As a presentational matter, the difference with this Bill is that we now have a single clause setting out the definition of direct discrimination and the qualifications to it, for all the protected strands, but unlike some of the other caveats and elaborations in the clause for particular strands, subsection (6) could, to the unfamiliar, raise questions about where this leaves other characteristics, in cases in which the claimant and the discriminator share the protected characteristic. We do not think that real problems will arise.

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We have listened to the arguments made by the hon. Member for Oxford, West and Abingdon (Dr. Harris), though, when he advanced the case for an amendment, and we have taken his argument pretty well on board. There are two more points that I could make in favour of these changes, but as he advocated them very strongly and we have accepted them, he will be pleased, I hope, and we need not elaborate why we did so.

Clause 14 is about dual discrimination, allowing somebody who has been treated less favourably because of a combination of two protected characteristics to bring a claim. That was introduced towards the end of the Committee stage. The amendments today will make it clearer how the provisions work. There are many consequential amendments that we could not pick up in Committee because the clauses affected had already been debated by the time we introduced the new clause.

On amendment 145 to clause 14, the basic principle is that although the conduct alleged in a dual discrimination claim must be prohibited in respect of each of the protected characteristics in the combination, a claimant does not have to prove that he or she was treated less favourably because of each of them in turn. However, where an exception or justification applies to the conduct which would mean that it was not unlawful direct discrimination because of one or both of the protected characteristics, a dual discrimination claim cannot succeed.

For example, discrimination in employment is prohibited in respect of both sex and race. That would mean that a black man may bring a claim of dual discrimination if he is denied a job because of the combination of his sex and race. He would not need to be able to prove that he was treated less favourably because of his sex and because of his race separately. However, if the employer could show that it is an occupational requirement for the job that it should be held by a woman, and therefore that denying the job to a man would not be unlawful, the claim would not succeed. This is not a change of policy, but it is important clarification because there are provisions in the Bill that allow genuine occupational exemptions of this kind. We have put in place amendments to capture those justifications and exceptions from any other Act as well.

In addition, clause 14 relates to cases of disability discrimination in education which are heard by the special educational needs and disability tribunals or equivalent specialist tribunals. We are excluding from the scope of clause 14 circumstances involving discrimination in education because of disability. That is because the case of someone being treated less favourably by a school, owing to the combination of disability and another protected characteristic, would be met by a single-strand claim in the specialist tribunal. It is better to defer to the expertise of those exclusive jurisdictional regimes than to undermine them by sending combined claims out of their specialist area to the civil courts. We are not stopping a remedy; we are providing the one that we think best fits.

4.30 pm

We need to make that amendment to clause 14 to reflect the changes to the rest of the clause, but they are quite techie and detailed and I do not feel that people will be disadvantaged if I do not set out exactly why we need all the consequential amendments. By and large, there was cross-party support for dual discrimination,
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and it follows that, because the measure was introduced late in the day, we will have to put in shape all prior clauses in order to acknowledge it.

Amendments 152 to 154 are about clarifying "harassment" in clause 25. Amendment 152 replaces the bulk of subsections (1) and (2) with some more straightforward propositions. Currently, subsection (1)(b) defines sexual harassment by copying the wording of European directives, namely whereby somebody

We replicated that wording when we amended the Sex Discrimination Act 1975 to implement the relevant directive, but it is difficult to identify any sexual harassment that would not be verbal, non-verbal or physical, therefore those words were probably always superfluous. The wording has not been a problem with the 1975 Act, but in the more far-reaching Equality Bill it could cast doubt on broader references to "conduct".

The second matter that amendment 152 addresses is an ambiguity in clause 25(4). "Harassment" in clause 25 encompasses three kinds of conduct: first, unwanted conduct in relation to all the protected characteristics, but not pregnancy, maternity, marriage and civil partnership; secondly, sexual harassment; and thirdly, less favourable treatment because a person has rejected or submitted to either sexual harassment or harassment related to sex or gender reassignment.

Clause 25(4) covers the third form. The provision is ambiguous and we need to clarify it to ensure that the conduct that is submitted to or rejected has the purpose or effect of violating the complainant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The ambiguity arises because of the way in which the three forms of harassment are described, so we have, as it were, restructured the provision.

Amendment 179 amends schedule 3, which relates to part 3 of the Bill, on services and public functions. The issue is about the provision of services to employees and the ways in which they are to be treated as a section of the public. That is relatively straightforward when it involves the arrangement by employers of such services for employees as gym membership, but when the employer discriminates in providing access to that service, the employer can be held liable. Employers should ensure that all employees can access the service without being discriminated against, but that becomes more difficult when it is applied to group financial products such as group insurance policies-arrangements between an employer and an insurer for the benefit of the employees, their partners and so on.

Group personal pensions are arranged by the employer for the employee as part of their overall package. They are entered into on the basis not of individual characteristics, but of the employer's business and the overall profile of their employees. Currently, employers are responsible for those schemes, as they are part of the employment relationship, and the amendment would remove from the scope of the provisions services group insurance schemes that are arranged in that way. It is very important that I mention that, as it is a change of that kind.

Amendment 186 is a purely technical amendment, so let me bother the House with it no longer. I look forward to hearing from the hon. Member for Forest of Dean (Mr. Harper) about the Conservative new clauses.

2 Dec 2009 : Column 1183

Mr. Harper: Before I speak to the new clause, I want to say a brief word about timing-a point well raised by my right hon. Friend the Member for Maidstone and The Weald (Miss Widdecombe). It is obvious at this stage of proceedings, with less than one and a half hours to go until the Report stage concludes, that there has been a gross underestimation of the time that the House requires for debate. That is solely a matter for the Government. Last week I wrote to the Leader of the House-a letter that I copied to Mr. Speaker and to which I am yet to receive a reply-pointing out that she had committed to the hon. Member for Oxford, West and Abingdon (Dr. Harris) to open negotiations with the Opposition parties and interested Back Benchers on the timing of the scrutiny of the Bill on Report. That appears in the Official Report of 25 June 2009. That negotiation never happened. She also said that she wanted to ensure that the way that we scrutinised this Bill was an exemplar of how the House of Commons scrutinises Bills. I think it is clear that it is no such thing. If it is an example, it is a very poor one.

Mr. Michael Howard (Folkestone and Hythe) (Con): In the light of what my hon. Friend has said, should not the Minister withdraw the remark that she made a few moments ago when she said that the Government were not asked to provide more time for consideration of the Bill?

Mr. Harper rose-

Mr. Deputy Speaker: Order. Before this matter proceeds any further, I think that the hon. Gentleman's comments clearly indicate that time is now of the essence. Perhaps these are matters for another day. I suggest that he now makes the necessary remarks about new clause 41.

Mr. Harper: I am grateful for your guidance, Mr. Deputy Speaker; I am sure that my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) recognises that I will follow it.

The Solicitor-General has clearly outlined the purpose of new clause 41, and we are perfectly happy to accept it. I want to speak to some of the other new clauses and amendments in the group. For the benefit of the House, I will make my remarks as brief as I can. I am not going to curtail necessary debate and the points that I need to make merely because we are short of time, but I will not prolong my remarks unnecessarily. New clauses 7, 8, 9, 18 and 19 and amendments 14, 15 and 31 cover harassment on several grounds relating to sexual orientation or other gender issues. Some of those were tabled by the Liberal Democrats; I understand that the key one is new clause 7, which they may well want to speak to. Having looked at the new clause and reconsidered the matter, I thought that it would be helpful if I outlined our views on it. In Committee, the Solicitor-General indicated that there was no evidence that there was a real problem. The most telling evidence that we heard came from Stonewall, who said that there was no clear evidence that homophobic bullying in schools required this legislative solution and that it could be dealt with in other ways. Stonewall said that it campaigned for legislative change but only where there was an identifiable real-life mischief that required such change, and it was not convinced that it was necessary in this case.

In Committee, the hon. Member for Oxford, West and Abingdon gave the example of two parents who were gay and had adopted a child who would find it
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difficult if they went to a school where homosexuality was taught to be sinful. I said that parents in that position would not choose to send their child to a faith school where that was the belief of the religion concerned; indeed, I said that that would be a completely crackers policy. In other circumstances, such as bullying between pupils, that is a matter to be dealt with by the school.

Dr. Evan Harris: I am intrigued by the way in which the hon. Gentleman is citing my argument. Is he saying that the best way to avoid the problem is for parents who fear that their child will be bullied to not choose schools where they might be bullied? That is a new line, even from the Conservative party, on parental choice. Surely the argument is that no school should countenance such behaviour so as to maximise the choice available to parents, especially those in the position that he describes.

Mr. Harper: The hon. Gentleman is misrepresenting my remarks, I hope not deliberately. There are two specific situations here. If the child is being bullied by other children, then the right solution is for that to be dealt with by the school and the school authorities. The Solicitor-General made the very sensible point that in the state sector, there is clear guidance from the Department for Children, Schools and Families that it should be dealt with by the school. When the problem is between pupils, it is not appropriate for the law to be involved. The case that the hon. Gentleman is talking about is not really one of bullying but one in which a child whose parents or guardians are gay feels harassed by the school, presumably a faith school, teaching as part of its ethos that homosexuality or its practice is sinful. My point was that it would not be sensible for a parent in that situation to choose a faith school, knowing that they would be putting their child in that position. It would be crackers. It is not at all accurate for him to characterise that as my saying that people have to predict where their child will not be bullied when they choose schools.

Dr. Evan Harris: I can see the point that the hon. Gentleman is making, but I shall put my point in the language that he is using. Is he saying that parents who fear that their child will be harassed by being told that their parents' lifestyle is unacceptable or sinful should have less choice of school? They cannot choose their local state school if that risk exists. Would it not be better to have a provision outlawing harassment, so that faith schools had to work within the framework of non-harassment?

Mr. Harper: I think the hon. Gentleman's argument is really about whether there should be faith schools. I have set out our view of his new clauses, which will give him an idea of how we will vote if he presses them. I believe I will have the support of my right hon. and hon. Friends if I do not prolong this part of the debate, given that we wish to cover a number of other matters.

A number of new clauses and amendments, tabled by various Members, are about discrimination according to caste. Those are new clauses 10, 30 and 43 and amendments 2, 53, 187, 188, 192 and 193. I and a number of other Members raised the matter in Committee, and we took the line that we were not convinced that there was a serious existing problem in the UK. I suggested that if it were proved that there were, it might be possible to subsume protection against caste
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discrimination into one of the other protected characteristics. The Solicitor-General said that the Government had looked hard to see whether there was evidence of such discrimination, and that such evidence had not been brought before them. However, she said that they were continuing to examine whether there was a specific problem.

Jeremy Corbyn: There is a great deal of information and evidence about the presence of caste discrimination in this country, not least in the document produced by the Anti Caste Discrimination Alliance over the past few weeks, which is a significant study. It is time to put to rest the line that many people have taken that there is no evidence of caste discrimination-there is an enormous amount, and it is time that we addressed this scourge on the many people in our society who suffer from it.

Mr. Harper: I am grateful to the hon. Gentleman. In a moment I shall draw attention to the information from the ACDA that I received just last week, and then I will listen carefully to the Members who have proposed the relevant new clauses and amendments. I was simply setting out what the Solicitor-General had told us, and I have not seen any evidence that the situation has moved on.

It would be helpful if those who have tabled the new clauses and amendments explained how we can deal with the problem. Some have proposed a new protected characteristic and some propose adding caste protection to the race discrimination provisions, and it would help if they explained what other type of discrimination caste discrimination is most akin to. I have looked into it, and it clearly has some similarities with race in the sense that people are born with it and are unable to change it, but its origins are heavily linked to religion and the Hindu faith. I am not sure how well adding it to one of the other protected characteristics would deal with the matter. Equally, I am not terribly keen to start creating a large number of new protected characteristics, given that one of the central purposes of the Bill was to bring together a number of strands of discrimination and simplify legislation on them so that it can be enforced more effectively in practice. It may be that there is a good case for including caste as a protected characteristic, but there may also be a case for including a lot of other things. If we end up having a very large list of protected characteristics, this area of law will become ever more complex. However, I will listen with interest to those making those proposals.

4.45 pm

I said that I would speak briefly about the letter that Members received from the ACDA, which refers to a scoping study it carried out between August and October. Not being a statistician, I do not know how much weight one should give to that study. The organisation says that 300 people participated in an online questionnaire and that there were nine focus groups in England. It said that from that survey, there was clear evidence that the caste system had been imported into the UK with the Asian diaspora and that caste discrimination affected people in ways beyond personal choices, including in employment, education and the provision of services.

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