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"promoting or explaining the doctrine of the religion".
I accept the point that has been made that even if they spend most of their time doing pastoral work and do not run many services, they should be covered by that provision. If that is the issue, perhaps clarification is needed. There is no difference between us on those grounds.
Sir Alan Beith (Berwick-upon-Tweed) (LD): Does my hon. Friend realise that many youth workers in churches have as their primary activity the explanation of the doctrines of the religion to those with whom they work? Where do they fall in his understanding of the definition?
Dr. Harris: If their job is promoting and explaining the doctrine of religion, and if their employment wholly or mainly involves doing that, theirs is a teaching role rather than one of organising activities and doing other pastoral work that youth workers do. I think that such a role would fall clearly within paragraph 2(8)(b) of schedule 9, and my right hon. Friend should be reassured. It is not in our interests to interfere with the right of religious organisations, within this exemption, to ensure that those promoting and explaining the doctrine are not subject to gender or sexual orientation requirements. I hope that he accepts my good faith on that issue.
Andrew Selous: The hon. Gentleman keeps returning to sexual orientation, but does not he understand that the current law has already been used against Christian-based welfare organisations that wanted to employ someone who shared their faith? They were challenged and lost their case. This issue is much wider than sexual orientation, and touches on issues such as freedom of association and the ability of faith-based organisations to pick someone of that faith to carry out work within that organisation.
Dr. Harris: Let us be clear: religious organisations have far more scope to restrict employment to people who share their religion than is covered by this part of the schedule. I accept that the exclusion in respect of discrimination in employment on the grounds of religion is now narrow, but we are talking about sexual orientation. That is separate from religion, and one cannot say that a person is of the wrong religion because of sexual orientation, except where that is involved in the two practices set out in the new clauses.
Mr. Drew: I am grateful to the hon. Gentleman for giving way, although we disagree about whether sexual orientation is the only issue here. However, does he agree that Mr. Justice Richards did not say in his judgment that the narrowing of the definition by the European Commission was necessarily the right way to go? Clearly it is a complicated judgment, but the High Court is at variance with the Commission, and that is why some of us question why the Commission's opinion is considered to be sacrosanct.
Dr. Harris:
If we sign up to a treaty we have to abide by it, and the Commission gets legal advice about infractions on our part. Mr. Justice Richards said that in his opinion a narrow reading of the Government's approach could be in compliance with the treaty, but that was his opinion and he is only one judge. If the Government wanted to resist this proposal, they could
take the matter to the European Court of Justice in Brussels and see where they got to. It looks as though they have chosen not to do that, so I shall move on to the final groups of amendments, which deal with schedule 23 and discrimination in the delivery of goods and services on the grounds of religion.
My colleagues and I have tabled amendments 199 and 200, which specifically propose that an organisation with a religious ethos that is delivering public services-and which is therefore in receipt of public funding, or which is part of a structure delivering public services or under a contract to do so-should not discriminate against users on the grounds of their religion. If such an organisation were providing a care home, say, the home may appeal particularly to followers of that religion, but the organisation could not hang a sign on the door excluding people from other religions.
For example, a Jewish care home could not exhibit a sign saying, "No Muslims". A sign like that would not be acceptable in racial terms, and it is not necessary or acceptable in religious terms, because the organisation involved is providing a public service. My amendment 199 would restrict an organisation's freedom to discriminate in that way when delivering a public service.
It is the same with adoption. I disagree with the new clause tabled by the right hon. Member for Maidstone and The Weald: I think that it is wrong for people delivering public services to discriminate on the grounds of sexual orientation, and the same applies to religion. If it is wrong for Catholic adoption agencies to say that no gays need apply, it is also wrong for them to say that no Protestants need apply either. It is not good enough to have a referral system, because such a system does not deal with discrimination where it is unacceptable. The problem with buses in Alabama was not dealt with by allowing companies to say, "We discriminate, but don't worry, the next bus along won't discriminate against you."
An organisation delivering a public service has a relatively captive population, and people should not have to shop around to find a place where their dignity will be respected and they will not suffer discrimination. The real danger is that an unamended clause 145, which deals with public sector duty as it extends to religion, could lead to a balkanisation of public services. By that I mean that more and more such services will be delivered by organisations with a religious ethos because local authorities will feel themselves under a duty to allow every group to have their own service. The result will be that the services provided will be discriminatory.
That is not the way we want to go. We want to build social cohesion and, although some organisations will appeal to the religion of certain of their users, we should not allow them to discriminate in those people's favour. In fact, it would be healthy for a halal meals-on-wheels service to ask anyone, "Would you like to enjoy the halal service that we're providing on behalf of the council?"
John Mason:
I appreciate the hon. Gentleman giving way again, but will he clarify his proposal? Is he saying that schools, for example, should exhibit the same grey sameness, with all of them exactly the same as all the others? Is it not equally valid for a local authority-such
as Glasgow, for example-to provide Catholic, non-denominational, Jewish or Muslim schools for families who want them? Is that not an equally good way to provide public services?
Dr. Harris: There are two questions: whether there should be a variety of providers delivering education or other public services, and whether they should discriminate. Plenty of faith schools do not discriminate. So why should one be allowed to discriminate in respect of either employment or the users of services, or pupils, on the grounds of religion? That brings me to amendments 14 and 15, which deal with faith schools.
Sammy Wilson: Will the hon. Gentleman give way?
Dr. Harris: I will do so in a moment; I want to deal with this point, and then make sure that I finish very quickly.
If the Government are right that they need to restrict the provision in schedule 9 to comply with article 4.2 of the European directive, it is clear that the faith school provisions in sections 58 and 60 of the School Standards and Framework Act 1998 have a total exemption from the Bill. Amendments 14 and 15 would deal with that. The Bill says that, regardless of the Bill, schools can do anything under sections 58 and 60 in terms of discriminating against people on the grounds of their religion-or, indeed, their lifestyle-as schools think they can. That is clearly outside the scope of the directive, and I think that the Government know that it is challengeable on those grounds.
It is wrong that that exemption should be specified in the Bill. Why do the Government not remove the exemption in schedule 22 and just ensure that faith schools operate under schedule 9, and have to make that case? That is why we propose amendments 14 and 15. I think that time will show that when a teacher is sacked for being of the wrong religion, or no religion, by the local state school employer that happens to be a faith school, the school will lose and we will be back to square one in needing to amend the legislation.
Sammy Wilson: The hon. Gentleman has indicated that he has no difficulty with faith schools, but he suggested earlier that faith schools should not be allowed to promote a certain belief that people felt harassed by-and, indeed, that they should be covered by this legislation. He cannot have it both ways, can he?
Dr. Harris: Schools cannot have it both ways. The faith organisations that run schools cannot tell the Public Bill Committee that they would never deliver anything, even their RE, in a way that creates an environment-this is the definition of harassment-that is demeaning, degrading, intimidating, offensive or humiliating. They say that they do not do that. Therefore, the hon. Gentleman cannot have it both ways and say that they need to be able to do that, when the schools are saying that they do not need to. If we get a chance to vote on new clause 7 and the other amendments in this group, I urge the House to support them.
Ms Katy Clark:
It is a pleasure to speak to amendment 53 and new clause 35, on the Scottish Gypsy Traveller community. There are approximately 25,000 Scottish Gypsy Travellers, and it has been far from clear for a very long time whether they are protected by current
legislation-in particular, the Race Relations Act 1976. There is legal precedent in relation both to Irish Travellers and Romany Gypsies. The position has been far less clear in relation to the Scottish Gypsy Traveller community. I have therefore been asked by that community to bring this issue to the House today, to ask for clarification on its position.
I should be interested to hear the Solicitor-General's view on whether that community would be protected by the provisions on race in the Bill and, indeed, whether that amendment is necessary. To date, with the exception of one employment tribunal decision that has not been contested and was only decided by Aberdeen tribunal last year, most of the advice has been that the community could not necessarily rely on the 1976 Act.
The community goes back to at least the 12th century in Scotland. It is a very distinct community, with its own language. I hope that no Division will be required on this matter, but given that the community has suffered historic discrimination, I would be grateful to the Solicitor-General if she responded either now or in her closing remarks.
5.45 pm
Mr. Howard: I shall speak to amendment 196 in my name. I draw attention to my entry in the Register of Members' Interests; to the fact, which will be all to obvious to the House, that I am over 50 years old, which is relevant to the remarks that I am about to make; and to my very considerable constituency interest in this matter, in view of the fact that Saga is the biggest employer in my constituency.
I do not want to take up the time of the House unnecessarily. If the Solicitor-General is able to give me now an explicit assurance-I am sure she will have looked at amendment 196-that the provisions in that amendment will be written into the Bill or be covered entirely by secondary legislation, which was what the Government indicated they were minded to do in their consultation paper, I would be happy to sit down now and allow others to use the time that remains.
The Solicitor-General indicated dissent.
Mr. Howard: Alas, the Solicitor-General is not prepared to help the House in that way, so I fear I must continue.
Very many of my constituents' jobs depend on the continuing success of Saga. That continuing success is called into question by the provisions of the Bill as it stands. Saga has built its highly successful business on niche marketing and exclusively servicing the needs of people aged 50 and over. Last year it provided a range of services to some 2.7 million people. Its robust and highly popular brand is based on trust, quality, dependability and value for older people. It focuses on understanding and then designing bespoke services to meet the changing needs and demands of its target market of people aged over 50 in the UK, a demographic group consisting of about half the electorate, and forecast to grow from 21 million today to 25 million by 2020. It does not design or market products and services to other age groups.
Saga, of course, welcomes the principles behind the Bill, as do I, and supports the measures to combat unfair discrimination that denies people the ability to live life to the full, but as I say, the Bill as it stands risks
negatively affecting its customers' ability to buy the holidays that they want and the financial and other services that they need at a competitive price. Although I refer in these remarks to Saga, I have no doubt that other companies will suffer in a similar fashion if the Bill is not amended or secondary legislation is not introduced.
Saga's insurance business, for example, if forced to offer premiums to all age groups, would become less competitive for the over-50s because they would have to bear the extra costs of quotations for the under-50s. Understanding older savers means that Saga can offer better terms. Its holiday business currently serves only the over-50s, and the popularity and enjoyment of its holidays depends in part on their being exclusive to the over-50s, rather than open to all age groups.
Specialist advice services for long-term care funding and other services such as Saga Independent Living, which offers home care services, provide relevant and targeted training for staff that concentrates on the particular needs of elderly clients, such as special dementia training. It could not offer the service to all age groups without impairing the bespoke and tailored service that it has developed.
Research suggests-I will not go into the details of the research, although I have it available-that people are perfectly happy for there to be special offers and products tailored for particular age groups, such as discounted tickets for cinema or leisure facilities, cheap days at DIY stores, concessionary rates for hairdressing and so on. Indeed, the Government themselves seem to follow those principles. The enhanced individual savings account allowances for older people in the 2009 Budget, and public transport travel concessions such as the national free bus pass and the older person's or younger person's railcard bear witness to the fact that the principle is accepted by Government themselves.
In their Green Paper the Government responded to the points put by Saga in the consultation exercise by setting out three tests for any legislation on age discrimination. They said that
"it must be a proportionate response to a real problem and not create unnecessary burdens on the private, public or voluntary sectors;
it must not have the unintended consequence of prohibiting positive benefits for either younger or older people, such as youth clubs or clubs for older people, holidays catering for people of particular ages, or concessions and discounts which help younger or older people;"
"it must pass a 'common sense' test."
The Green Paper sensibly and specifically accepted the desirability of niche marketing. It said:
"There will always be a need for age-specific facilities and services."
Indeed, it said- [ Interruption. ] I am very happy to give way to the Solicitor-General, because she looks as though she is about to rise.
The Solicitor-General:
As I listen to the right hon. and learned Gentleman, I find that he is not saying anything that I disagree with at all. The only issue between us is that none of those provisions will go into the Bill. The way forward is either secondary legislation, following on from the consultation that he talked about
and the relevant basic principles, or guidance. I am happy to write to him in more detail if he wishes, but I do not think that any provision for which he advocates inclusion in the Bill will be missing from the guidance. We think that they are not appropriate for the Bill; they need the flexibility of being in a lower order.
Mr. Howard: I am very grateful to the Solicitor-General for that, but at the outset of my remarks I offered her a choice: put the provision either in the Bill or in secondary legislation. Guidance would not be enough, but secondary legislation certainly would be.
The Solicitor-General: I am sorry-clearly, I was being spoken to by someone else at the same time. I thought the right hon. and learned Gentleman said that if we put the provision in the Bill, that would be sufficient. However, we will not put it in the Bill. We intend, probably, to put it in secondary legislation, but I cannot be absolutely specific and say that it will not be in guidance. None the less, I am sure that we will capture all the benefits to which he refers, because they are exactly the exceptions that we want to make.
Mr. Howard: I am grateful to the Solicitor-General for that, but she must understand that the continued uncertainty causes very great difficulty for businesses as they try to plan ahead. I am prepared to accept the difficulties that might arise from putting what is necessary in the Bill, but I hope that, on consideration, she will be able to give me an explicit assurance that secondary legislation will cover my point. If she can, I shall not utter another word or take up another moment of the House's time this evening.
The Solicitor-General: The objective is the same, but we will not put it in the Bill. As I said, I cannot tell the right hon. and learned Gentleman at the moment whether the character of the business will be secondary legislation or guidance, so he may feel that he has to talk. However, we have met Saga; we understand the problems; and we will produce in January a document that makes the position absolutely clear. That is as much as I can say, but I hope it is enough.
Mr. Howard: Then I must, I am afraid, add a sentence or two. The Solicitor-General says that she understands the problem, but the problem will not be met by guidance. The law in this land is not determined by the Government's guidance; it is determined by legislation, either primary or secondary. We hear this time after time from the Government, but it simply will not do for them to say, "We will deal with this problem by guidance." I have made my point; I hope that the Solicitor-General and the Government will reconsider; and I hope that, if not on Third Reading, then when the legislation goes to another place, they will at least be able to provide an explicit assurance that that point will be covered by secondary legislation.
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