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Baroness Miller of Hendon: My Lords, I was making the point that if the only way we can delete this is because it is written in stone, we should get it out of stone so we can do what is right with this Bill.

Baroness Scotland of Asthal: My Lords, I understand that. Let us look at why the provision is there. It does have, if I may respectfully say so, a purpose. The amendment would remove it. As I have made plain before, those words are used in other key pieces of discrimination legislation. It is there in the Race Relations Act 1976 and the Employment
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Equality (Religion or Belief) Regulations 2003 without causing problems in those areas. It is a principle of discrimination law that you need to show that the actions of a person were intended to discriminate or harass. That is clear.

For example, if the police were to adopt a policy that led to discrimination or harassment of Asians, it would not matter that they did not intend that to be the result. What is important is that their actions have in fact led to discrimination or harassment. The Government think the situation should be the same in the case of discrimination on the grounds of religion or belief. It should not be acceptable, for example, if the Prison Service were to adopt a policy that created an offensive environment for Muslims, that it could simply claim that that was not its intention.

It is also important to bear in mind that one has to look at not only Clause 45(1), but also Clause 45(3). That makes it clear that:

I emphasise "only"—

(a) B's perception, and
(b) all the other circumstances".

So when we consider the concern that has been expressed about a capricious or irrational situation, I respectfully suggest that Clause 45(3) deals with that concern.

We have brought forward our own amendment to the harassment clause, which we will debate further in a moment. We believe this goes a long way towards addressing the concerns the noble Baroness had—as did others, such as the noble Baroness, Lady O'Cathain—about accidental harassment or something that was not intended. The amendment centres on religious material or articles, but does not include religious practices. This is because religious practice is a very wide concept, and to say that a religious practice could never constitute harassment unless that was the intended effect is too much.

In most cases, if a person receiving a public service felt harassed by religious activity, the solution would lie in simple practical measures, like making it possible to opt out of that practice in some way by doing something different so they did not feel so negatively about it. That is what the normal remedy would be, and what we believe would actually happen in most circumstances when dealing with people providing a public service. However, we recognised that it may not be so easy to adapt a physical environment, particularly where there are many different uses, perhaps including worship. It should be possible to adapt religious behaviour, though—even religious practice—in the context of the delivery of a public function. There has been a lot of debate in the House this afternoon that does not go to the public function
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but to the general expression of what people feel, but we have to concentrate on the fact that we are dealing with the exercise of public function.

5.45 pm

Lord Lester of Herne Hill: My Lords, I am sorry to interrupt the Minister, and I am grateful to her for allowing me to do so. She keeps referring to public function, but, as she knows, this refers not only to public function but to housing and private education.

Baroness Scotland of Asthal: My Lords, it refers to housing. Noble Lords will know that the whole issue of what public functions are and what other issues are involved was dealt with when we talked about them earlier. It seemed to me that part of the discussion was not in terms of exercising a public function or providing accommodation, or those other matters. It was put in a very general way. It is important that we concentrate on what we are talking about in this part of the Bill.

While I am on harassment and the nature of this part, there is a difficulty regarding what has been said about what defines and does not define a religion. I hope I will be able to say a little more about that in a short while.

Who could say that it is right to harass on the grounds of someone's religion or belief in areas such as the provision of services by prison officers to those imprisoned, or immigration officers, or other dischargers of public functions? To say we will not act against such behaviour now in a Bill that—with considerable Cross-Bench support—tackles discrimination on grounds of religion or belief would send the wrong message about what is and is not acceptable, particularly to those communities that are most likely to suffer from this form of discrimination.

The noble Lord, Lord Lester, suggested on Report that the Protection from Harassment Act 1997 provides sufficient cover in respect of harassment so that a separate provision in discrimination law is not necessary. I make it plain that we do not agree. The 1997 Act essentially covers behaviour that causes alarm and distress, that is unacceptable between any two individuals in our society, and that may be thought to be the precursor of violence. The use of the Act may have broadened from stalkers, its initial target, but does not cover the same range of behaviour as discrimination law. I understand what the noble Lord, Lord Waddington, has to say about the fact that it was never intended so to do, but it has developed, although it has not quite developed this far.

In Part 2 we are concerned to protect individuals due to the specific relationship between them and a harasser because the harasser is providing a public service or other service that they need, or is involved in providing them with education or vocational training, or is their landlord, or is providing a roof over their head. We think it right to consider more deeply the position between individuals and service providers in the area of goods, services and facilities where there is a less obvious imbalance, and where the recipient or the
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customer frequently has more choice in how they are obtained. It is for that reason that we have put those matters into the discrimination review.

We recognise that concerns remain around this issue—this debate itself demonstrates that—and that there are particular concerns to ensure that faith groups providing public functions do not by accident find themselves subject to a claim. We have said that we are willing to discuss the details of exemptions in all the areas affected. We have laid a further amendment to that end today, which I have already discussed. We will continue to consider these issues as these proposals are further discussed and implemented. But to remove the prohibition on harassment altogether from the Bill now would in our view fail those who may currently be suffering injustice in these areas.

If it passes into law, we will have no power other than by use of primary legislation to change the definition of harassment in this Bill but it is right that it should be reviewed across the piece in the discrimination law review rather than introducing a separate definition for this one strand at this point. In addition, we have a power to create new exceptions in the area of public functions or to vary the exemptions elsewhere in Part 2, if we do find that these provisions cause us unexpected problems. If some of the fears that have been expressed in this House prove to be correct, we have a vehicle with which to address them.

I turn to the amendment of the noble Lord, Lord Lester. I understand what he says about it. He asserts that we have misunderstood the definition of religion. I hope to clarify our definition. The noble Lord quite rightly referred to the House of Lords' decision in Mandla v Dowell Lee. In that judgment Lord Fraser said:

That is why, using that definition, the Government believe it is right that an ethnic group is not defined by its religion but that it can in part be so defined. We believe that definition is helpful.

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