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Lord Lester of Herne Hill: My Lords, before the Minister sits down, will she explain something? Let us suppose that a Pakistani Muslim is refused entry under immigration control. We have a race monitor to see
 
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whether such a decision was taken on a race basis, but we know that race and religion are intertwined in this area. Why would it be impossible or onerous for the race monitor not to be able to give public confidence to Muslims, Pakistani Muslims and ethnic minorities generally, by at the same time monitoring the religious as well as the racial aspects? I cannot understand that. The proposal would not cost much money—the same person could perform both roles and we know that it is hard to disentangle religious and racial grounds. That is what I cannot understand from the Minister's answer.

Baroness Scotland of Asthal: My Lords, I am grateful for the noble Lord's agreement that race and religion are difficult to disentangle. That is a contrary argument to the one that was made for the better part of this afternoon—that the two were easy to separate. That being the case, the view that has been taken is that there would have to be a different monitor for this as opposed to the other role and that the measure would be too bureaucratic and too difficult to deliver. I can assure the noble Lord that this matter was energetically pursued to see whether it would be possible to do what the noble Lord would like; especially bearing in mind that the noble Lord thought it would be simple and easy to achieve. For the reasons that I have given, the view was clearly taken that it would not be simple: it would be extremely bureaucratic and difficult and that when one looked at the consequences, it was not appropriate. That is the decision that the Government took. I can assure the noble Lord that the issue was fully explored.

Lord Dholakia: My Lords, I am grateful to the Minister for her explanation. I remind her that we raised this matter a long time ago and she made some genuine concessions. The powers of immigration are restricted. As my noble friend said, if I were a Muslim from Pakistan, I would certainly want to know whether I had been rejected on racial or religious grounds. It may be a few more years before we get such an amendment on to the statute book, but we will certainly keep trying. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 55 [Instructing or causing discrimination or harassment]:

Lord Lester of Herne Hill moved Amendments Nos. 30 to 34:

The noble Lord said: My Lords, in moving these amendments, I apologise for the split infinitive. I beg to move.

On Question, amendments agreed to.
 
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Clause 57 [Organisations relating to religion or belief]:

Baroness Whitaker moved Amendment No. 35:

The noble Baroness said: My Lords, in moving this amendment, I will also speak to Amendments Nos. 36 to 39 in my name and that of the noble Lord, Lord Marsh. They follow discussions with the British Humanist Association and I declare an interest as vice-president. I also very much appreciate the Minister's discussing the amendments with me. The essential point is that religious organisations, as defined in Clause 57 (1) and charities as defined in Clause 58 (1) may be carrying out options of a public nature—delivering services on behalf of local or national government or the national health service, for example. When they are thus acting as agents for public authorities, they should not be allowed to discriminate on religious grounds. We need to make it clear that they will not be so allowed.

Clause 52 (1) states that:

but Clauses 57 and 58 both state that "nothing in this Part" shall be held to restrict religious organisations and charities. The problem is, if a public function is being exercised by a body as defined in Clauses 57 and 58, will they be caught by Clause 52 (1)?

The question is complicated by the current controversy since the Leonard Cheshire case over precisely what a public authority is. What we need to be assured of is that Clause 52(1) would trump Clauses 57 and 58 in any future case. The amendments would achieve that.

Finally, consistently with this approach, the words "reasonably justified" should be substituted for "imposed" in Clauses 57, 58 and 59, because "imposed" is far too weak a trigger for exemptions from the new and welcome duties in the Bill. The proper test for licence to ban membership, ban the provision of goods, facilities and services, ban the use of premises, is surely the reasonable justification. I beg to move.

6.30 pm

Lord Lester of Herne Hill: My Lords, I support the amendment.

Baroness Scotland of Asthal: My Lords, I rise to speak to Amendment No. 35, which has been moved so eloquently by my noble friend Lady Whitaker, and to Amendments Nos. 36, 37, 38 and 39. I hope my noble friend will understand that I cannot accept these amendments, which revisit territory explored in this House in our discussions on removing the word "expedient" from Clauses 57, 58 and 59. However, I hope that what I say may give her some modicum of comfort.
 
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As I said on Report, the draftsman has given us a good set of words with the wording he provided—which this House then approved—which requires that there must be a causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend in Amendments Nos. 35, 37 and 39 would provide a test which would be less easy to apply. For that reason the wording provided by the draftsman is, in our respectful view, to be preferred.

Amendments Nos. 36 and 38 seek to prevent organisations and charities relating to religion or belief discriminating when providing a public function. I cannot accept these amendments. There will be occasions when a particular group has a specific need best met within the context of their own religion and when we might positively encourage an organisation to discriminate to ensure that need was met. An example might be a women's group catering specifically for the needs of Sikh or Muslim women, or a care home for Jewish people that received some public funding. These amendments would place too high a barrier in the way of service providers, who undertake valuable work, and for that reason we cannot accept them.

Clause 52(1) states:

I can assure my noble friend that that provision prevails in relation to those acts which are outside the exemption. For instance, although in many instances there will be materially different circumstances which would justify discrimination in public functions, these would be liable for challenge in ways that are provided by the clauses as we have them. To reduce the protection provided by the clauses would risk increasing the chilling effect. If they stepped outside the specific exception that we provided, those issues could be challenged.

My noble friend was concerned about bullying. What if someone was bullied in a school because they did not adhere to certain views? These provisions would not allow a school inappropriately to bully a child. It would be bound by the same rules against that sort of activity which apply now. It is the specific exemptions, and specific exemptions only, which would enable them to have advantage in that way.

Baroness Whitaker: My Lords, it is a pity that there is not one more stage to the Bill, so I would have a chance to study my noble friend's reassurance in Hansard before the Bill goes on its way. As I understand what she says, the courts would be likely to interpret the causes as they are in the way that I thought they would be after my amendments. On that basis, I suppose I ought to be content. I beg to leave to withdraw the amendment.

Amendment, by leave, withdrawn.
 
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[Amendment No. 36 not moved.]

Clause 58 [Charities relating to religion or belief]:

[Amendments Nos. 37 and 38 not moved.]

Clause 59 [Faith schools, &c.]:

[Amendment No. 39 not moved.]

Clause 72 [Validity and revision of contracts]:


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