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Baroness O'Cathain: My Lords, I thank the Minister for her words. I hope that the commission and indeed the courts will pay heed to what she has said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn

Clause 33 [Equality and human rights enactments]:

Lord Alli moved Amendment No. 10:

"(ea) regulations under Part 2A of this Act,"

On Question, amendment agreed to.

Clause 41 [Transitional: the Commission]:

4.30 pm

Baroness Ashton of Upholland moved Amendment No. 11:

The noble Baroness said: My Lords, noble Lords will recall that during the debates in Committee and on Report we discussed the issue of the term of office of the Disability Rights Commission transition commissioner. These two amendments seek to address the concerns expressed by noble Lords and to clarify the Disability Rights Commission transition commissioner's role.

On Report, the noble Lord, Lord Ashley of Stoke, the noble Baroness, Lady Darcy de Knayth, and my noble friend Lady Wilkins raised concerns about the term of appointment of the DRC transition commissioner not being of sufficient length to allow the wealth of knowledge and expertise that the Disability Rights Commissioner has built up to be transferred effectively to the new commission. On Report, I said that I understood the case for having the term of appointment of all three transition commissioners on a common basis and that it was a matter on which, in the classic way, I volunteered to reflect further. I have indeed reflected further, and these amendments are the result.

Amendment No. 11 removes the disparity between the term of appointment of the Disability Rights Commission transition commissioner and the
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transition commissioners nominated by the Commission for Racial Equality and the Equal Opportunities Commission. Amendment No. 44 clarifies the role of the transition commissioners, capturing the essence of the arguments put forward by noble Lords on Report, which is that the role of the transition commissioners is to ensure a smooth transfer of functions and expertise from the existing commissions to the new commission. We are ensuring that focus by precluding the possibility of the DRC transition commissioner being appointed as either a member or chairman of the disability committee. As the Disability Rights Commission has expressed it, the DRC transition commissioner is looking back, whereas the committee is looking forward exclusively. I beg to move.

Baroness Darcy de Knayth: My Lords, I warmly thank the Minister for both amendments, which were in response to amendments tabled in Committee and on Report by the noble Lords, Lord Carter, Lord Ashley and Lord Addington, the noble Baroness, Lady Wilkins, and me. That is a rather long preamble because none of them can be here, which they much regret. They are either at an important committee meeting or ill, so I am here to thank the Minister on their behalf. Their eloquence has paid off. I shall echo the noble Baroness, Lady O'Cathain, who has disappeared, and say that the Minister deserves a degree in diplomacy. This change is due to their eloquence and her unfailing ability to listen. She has reflected once again and has come up with the goods.

It is valuable to have the distinction. I am grateful for the transition commissioner going on for longer, because a certain number of cases might have been jeopardised otherwise. We are all extremely grateful.

On Question, amendment agreed to.

Clause 45 [Harassment]:

Baroness Miller of Hendon moved Amendment No. 12:

The noble Baroness said: My Lords, it is with considerable regret that I find myself in the position of being virtually forced to bring the amendment back at this final stage of the Bill, which in general terms is accepted by all parties as being very necessary in this day and age. The amendment is the same as that I proposed in Committee. It deletes two words from Clause 45, which describes the offence of harassment as being something that is done by one person, A, with "the purpose or effect" of violating someone's dignity or,

where B is another person. In the strongest possible terms, I object to the words "or effect", because they mean that we are not merely banning acts that are done with the express purpose of violating someone's dignity or intimidating or degrading B, but the Government want to ban acts that a person can claim have that effect.
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The Oxford English Dictionary describes "effect", among many other descriptions, as "an impression", which is a purely subjective test that it is impossible to disprove. If B says something that has that effect, who will gainsay him? We have only to look at the events of the past few weeks to see what ludicrous effects politically correct opinions can have. I am not talking about the farcical decision to commemorate the Battle of Trafalgar as having been fought between the red and blue fleets, rather than between us and the French. I am talking about the nonsense of one local authority renaming Christmas lights as winter lights, about schools banning nativity plays and Christmas cribs, and about the kite flying over Bonfire Night claiming that it is offensive to Catholics. Actually, Bonfire Night commemorates the prevention of an act of religious terrorism.

I hope that the Minister will forgive me for saying this, but I am talking about the absolute farce of the Home Office—the department of one of the two Ministers conducting this Bill throughout your Lordships' House—threatening to withdraw support and funding for an annual carol service at St Martin-in-the-Fields, one of the most famous churches in London, on the grounds that it is too Christian. I wonder if the Minister's department has noticed that every year, a Christmas tree is erected in Trafalgar Square just in front of St Martin-in-the-Fields. Perhaps we will be expected to reject the Norwegians' generous annual gift, on the grounds that some mischief maker might claim that, as the Bill says, it has the effect of violating his dignity or humiliating him. Worse still, some mindless bureaucrat might decide that it might conceivably do so, however remote that idea appears to be.

The irony is that responsible spokesmen for all the major non-Christian religions have said time and again that the celebration of Christian festivals and the publication of biblical texts outside churches does not offend them in any way. Equally, I have never heard of any one person of the dominant faith complaining about the celebrations—sometimes colourful celebrations—of the festivals of other faiths.

I refer to the answer that the Minister gave me when I raised this matter on Report. She said that,

she probably meant harassing—

With the greatest respect to the Minister, who is one of Her Majesty's learned counsels, I believe that that is totally incorrect.

The clause says nothing about the necessity of proving an intention to have that adverse effect. On the contrary, the intent aspect is entirely covered by the earlier words in the same sentence, which refers to acts for the purpose of having that result. In a letter to the noble Lord, Lord Lester, dated 2 November, which has been placed in the Library, the Minister said:

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Exactly—that is precisely the result that I am trying to achieve with this amendment.

The Minister also said that the same wording is found in other legislation, including that directly related to Sikhs and Jews, and that this amendment would create an inconsistency. Possibly because I found myself simultaneously coping with another major Bill and not having the benefit of flocks of paid researchers such as are enjoyed by Ministers and Members of the other place, I did not have the time to look up what she was talking about. If I had, I would have used this Bill as an opportunity to try to remove such a patronising and condescending provision at the same time. If such provisions exist elsewhere, as the Minister says, they are equally wrong. If we have not yet seen a crank or malicious claim, that does not mean that we will not in the future. It is certainly no excuse to leave a similar, objectionable provision in the Bill.

Earlier this evening, I said that the Minister could not accept the amendment, or did not want to. Actually, I think that it would create a considerable inconsistency, as she says in her letter to the noble Lord, Lord Lester of Herne Hill. It is not that she does not think that the words should go, but rather that it is difficult to get rid of them because they appear elsewhere.

The words that I object to, and wish to remove, are those that create an offence merely because a person claims that some act or other, however innocuous, has adversely affected him mentally. How is anyone going to be able to climb into the mind and see if it really did? Are we really going to have to rely on the courts to decide whether it was reasonable for him to take offence? I cannot understand why the Government are so obdurate in refusing to remove these two words. They do not prejudice the working of the clause.

I commented on Report that I was not supporting the amendment of the noble Lord, Lord Lester of Herne Hill—to delete Clause 47, as it was then—because I thought the Government would except the words "or effect". If you take those words out, the rest of the clause is a good one in that it stops people being harassed, intimidated or made nervous. With those words, however, it is totally unacceptable. So it is more than what I said before—that I had reservations because it was, in effect, throwing the baby out with the bathwater. It was purely that I thought that there was enough left in that clause to make a good clause. I did not want to force the Government to get rid of something that might be helpful.

The political correctness and cotton wool nannying that these two words generate can lead only to endless litigation. The Minister will tell me that they will not, because she can give me examples of other Bills that include them. They should not be in this Bill; they should not be in the other Bills. I am going to test the opinion of the House in a moment, and very much hope that we are going to be able to remove these two offensive words. They change what ought to have been a very good clause.
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If the Minister is unable to accept that—I suspect that she is not, because she has been listening to me a lot and simply says no because it is inconsistent with other Acts and so on and so forth—I will advise all my noble friends that they will have to vote to get rid of Clause 45. I would be sad if that is what we would have to come to, because there is value in that clause.

If the Minister were able to agree with my amendment, there would be no need for the other amendment. However, the noble Lord, Lord Lester of Herne Hill, has kindly spoken to me at length and has suggested to me that I should not divide the House because I cannot win, and that, by advising my colleagues to vote for Amendment No. 14, that amendment could be won. I said to the noble Lord that I would think about it, and I did. Two points come to mind, however. First, if there is a wish to make this clause better, then I am amazed at what the noble Lord has said. He says that we could support him in getting rid of the whole thing, but he would not find it possible to support getting rid of the two words that make it offensive.

That is one reason why I will test the opinion of the House. If the reality of the situation is that we do not win, I will support the noble Lord, Lord Lester, and would advise my noble friends to do likewise. The second reason why I am not prepared to do as the noble Lord suggested is because, although I want to get rid of those words, I believe that the rest of the clause is acceptable. I feel that when you believe in something, you have to do what you believe. I beg to move.

4.45 pm

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