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So the suggestions which were made by two members of the Ecclesiastical Committee that this was not necessarily an accepted change, and that a future Government might wish to reinstate political appointment for diocesan and arch-diocesan appointments, would, I think, be rather controversial and should not pass without mention. I would not wish the Church of England to become again in any way the Tory party of prayer, or to be the representation of the Christian Socialist Fellowship, or any other body. While I support the continuation of the established church, I think it is highly desirable that the church should be outside and above party politics. I therefore entirely accept and strongly agree with the statements in the 2008 White Paper, as did indeed the clear and overwhelming majority of the members of the Ecclesiastical Committee present at our last meeting. I just wish to mark this occasion that this is not entirely without a degree of controversy and I very much welcome the acceptance by the noble Baroness, Lady Wilcox, of the proposals.

Lord Elton:Your Lordships should not have an exaggerated idea of the ferocity of the controversy which took place in the Ecclesiastical Committee. I rise merely to support this Measure with enthusiasm, particularly as regards the discarding of the most unfortunate practice of appointing people to lose a race, which seems to be what we were doing over the last few centuries.

Lord Judd: As a member of the Ecclesiastical Committee as well, I would like warmly to support what is being recommended and simply say, as an Anglican, that I found it quite reprehensible that we were going through a charade in which two names were being put forward with no intention that the second should be considered. It seemed to me an utterly humiliating exercise for the second person concerned and I am very glad that we are being asked to put things right.

The Lord Bishop of Winchester: My Lords, perhaps I can reassure the noble Lord, Lord Judd. Although the law and practice has been as described, there was a hint in the description given by my noble friend the

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right reverend Prelate the Bishop of Chichester that, while a minority of bishops have followed the directions to the letter in this particular matter-of going through a selection process for a second name who knows nothing about it-there are other diocesan bishops who thought that was frankly too silly for words and who have not done so. So we are not as reprehensible as the noble Lord behind me has been suggesting, though we are presumably in another way, because we have not been following the precise letter of the law.

Baroness Wilcox: Perhaps I may apologise to the noble Lord, Lord Judd. I said that there were three members of the Ecclesiastical Committee present, and of course there are indeed four. I would ask that Hansard corrects the mistake that I made.

Motion agreed.

Crown Benefices (Parish Representatives) Measure

Motion to Present for Royal Assent

7.45 pm

Lord Bassam of Brighton: My Lords, I have it in command from Her Majesty the Queen and His Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Crown Benefices (Parish Representatives) Measure, have consented to place their prerogative and interests, so far as they are affected by the Measure, at the disposal of Parliament for the purposes of the Measure.

The Lord Bishop of Chichester: My Lords, I apologise for slightly jumping the gun a moment ago, I was wrong-footed by the noble Baroness having spoken to this Measure as well under the previous one.

This is the second of the two Measures before your Lordships' House this evening that concern ecclesiastical appointments made by the Crown, in this case parochial appointments. As we have heard, the consent of the Queen and of the Prince of Wales as Duke of Cornwall have been given.

As things stand at present, when a benefice is vacant, the parochial church council of a vacant benefice appoints two lay representatives whose approval is required before a patron can present or a bishop can institute a particular priest to the living. This gives the laity of the parish, through their representatives, an important, even a decisive, role in the appointment of a new incumbent.

This right does not however currently apply to livings in the gift either of the Crown, including the Lord Chancellors' department, or of the two Royal Duchies of Lancaster and Cornwall. These so-called "Crown benefices" constitute about 8 per cent of the

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total number of the 7,633 parochial benefices in English dioceses-quite a sizeable minority.

The policy background to this short Measure is again the Government's Green Paper of July 2007 and the recommendations put before the Synod by the Archbishops in response. In the light of the Government's policy that the Prime Minister should no longer make the final choice in ecclesiastical appointments, it made sense that the exercise of parochial patronage by the Crown and the two Royal Duchies should become more closely aligned to the exercise of patronage in the gift of other patrons which might be institutions such as cathedrals and colleges or private individuals, or indeed of diocesan bishops themselves. This would involve giving parochial church councils of Crown benefices the same right to appoint representatives with the power to give or withhold approval of the patron's choice of priest to fill a vacant living.

This Measure makes the necessary amendments to existing legislation to achieve just that. It gives parochial church councils of Crown benefices the same right to be formally involved-by way of approving the patron's choice-in the appointment of their new incumbent. This neatly achieves the removal of the final decision from Ministers without abandoning the principle of a mixed-economy in parochial appointments where patronage is exercised by a variety of people and corporate bodies, including the Crown. It is really as simple as that. I commend this Measure to your Lordships' House.

Motion agreed.

7.50 pm

Sitting suspended.

Equality Bill

Committee (Continued) (2nd Day)

8.22 pm

Clause 21 : Failure to comply with duty

Amendments 45C and 45D not moved.

Clause 21 agreed.

Clause 22 : Regulations

Amendment 45E not moved.

Clause 22 agreed.

Clauses 23 and 24 agreed.

Clause 25 : References to particular strands of discrimination

Amendments 46 to 50 not moved.

Clause 25 agreed.



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Clause 26 : Harassment

Amendment 51

Moved by Lord Ouseley

51: Clause 26, page 13, line 42, leave out "gender reassignment or sex" and insert "a relevant protected characteristic"

Lord Ouseley: My Lords, in moving the amendment, I shall speak also to Amendment 106, which is coupled with it. The amendment makes it a form of harassment for person A to treat another person B less favourably because B is either rejected or submitted to sexual harassment, or harassment related to gender reassignment or sex.

The amendment would simply extend the protection to apply if B is rejected or submitted to harassment related to any relevant protected characteristic, not limited to gender reassignment or sex. I shall provide an appropriate example of harassment from which the amendment would ensure protection. A Bangladeshi worker is subjected to racial harassment by his fellow workers. He finds their remarks and gestures demeaning and offensive. He does his best to ignore what he hears and sees in order not to put his job at risk. His line manager is aware of this campaign of harassment, but takes no action to prevent it. Instead, when the Bangladeshi worker persistently rejects the taunts and insults, his line manager excludes him from the overtime rota.

Under the Bill as drafted, that Bangladeshi worker would not be able to complain of less favourable treatment by the line manager. The Bill limits such protection to cases in which the harassment is related to sex or gender reassignment only. No explanation has been offered as to why other characteristics-for example, race, disability or sexual orientation-are not equally protected. The amendment would enable that protection.

With regard to harassment in schools, Amendment 106 to Clause 85 would place the same obligation on school governors, local authorities, education authorities and proprietors of independent schools in relation to their pupils as the Bill places on employers in relation to their employees. There is widespread concern about harassment and bullying in schools. In many instances, this is done by other pupils, not by the school or its staff. The purpose of this amendment is to make the body responsible for the school liable for harassment of pupils, regardless of who the harasser is, including other pupils.

Clause 85 already prohibits harassment of pupils by the responsible body-the governing body, the local authority, the education authority or the proprietor of an independent school. This would include harassment by any employee of the responsible body. While the general responsibility of governors and local education authorities for the health and safety of pupils under common law should involve protecting pupils from the harm of harassment by any person, it is not clear whether this would cover pupil-to-pupil harassment, which is recognised as a problem in many schools. There are frequent tragic reports of school pupils self-harming or committing suicide because of harassment and bullying by other pupils.



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Amendment 106 would provide a clear statutory obligation to prevent harassment of pupils by any person. Therefore, the purpose of this amendment is to give the body responsible for a school an obligation, in relation to harassment of pupils, equivalent to that which the body already has as an employer in relation to harassment of its employees.

Under Clause 40(2) teachers and other staff are already protected against third-party harassment, including harassment by pupils. My amendment reflects the language in Clause 40, which places a liability on employers for third-party harassment of their employees. I do not agree with the need for the individual to have been harassed on two previous occasions before the responsible body has liability, as set out in Clause 40-although Amendment 62 of the noble Lord, Lord Lester, which I welcome, would modify that. The main purpose of Amendment 106 is to bring schools into alignment with workplaces in terms of protection against third-party harassment. I beg to move.

Lord Lester of Herne Hill: I will also speak to the various amendments in the group in my name-Amendments 56A and 56B, Amendments 61 to 63, and Amendments 106ZA and 106ZB. They have been grouped together and this is a complicated and difficult subject. To speed the passage of the Bill, I will deal with it briefly-I hope-and in a way that enables the Minister to go on the record with a full explanation of these matters.

I preface that with something on harassment as defined in Clause 26. I have already made the point but will make it a bit clearer. During the passage of the Equality Act, when the noble Baroness, Lady Ashton of Upholland, had responsibility for it, we had a problem in extending the definition of harassment as it is now in Clause 26 to goods and services, and in particular to housing and education. The problem was in a sense that raised by the right reverend Prelate about free speech and the interaction between religion and sexuality, for example, and one religion and another.

8.30 pm

The basic problem, taking it stage by stage, was when the Government implemented the EU equality regulations. These would have allowed the Government in Clause 26(1)(b)(i) to put in the word "and"-that is, to have made the wrong of harassment only where you both violate a person's dignity and create,

for the alleged victim. However, the Government instead put in the word "or" to make it stronger than EU law strictly required. Having done that, it is part of what is already there. Some would say that what I am now going to say would represent regression.

The problem in the Equality Act is that there is no filter to prevent an individual bringing proceedings in an employment tribunal or county court for harassment. There is no body there like the commission to say, "That is ridiculous". Somebody can bring a claim in employment or beyond saying that their dignity has been violated and that is enough. It was evident to the Government at the time that this created real problems for religion and sexuality, the churches and free speech.

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One example in our minds was, say, a Christian landlord who wanted Jews to convert and who had a poster in the hall that said "Belong to the Jews for Jesus", which would offend the Jewish tenant. The Jewish tenant could bring a claim for violating dignity. There were various other examples of that kind, where thin-skinned people whose dignity was being violated could bring a claim. The Government wisely decided to take out the notion of harassment as far as it affected religion or sexual orientation beyond employment for another day. I hope I am accurately summarising the history.

It is still unfortunate that we are wedded to "or" instead of "and" because I worry that frivolous or crazy claims could be brought under harassment. Even if they fail-as they probably would-they would bring the law into disrepute. I am keen to discourage stupid cases because the bringing of the case is almost as bad as the winning or losing of it. I wish one could replace "or" with "and". It would be more reasonable if the claimant had to show both that dignity was violated and that it created an offence of such-and-such an environment. It would certainly not be inconsistent with EU employment equality law.

That is all tedious background but it is important to understand. I will try to summarise my own amendments in this group as clearly as I can-not, as I said, to argue the points but simply to give the Minister the chance to go on the record to give me reassurance on whether there is any gap in the law. I can then reflect on that before we come back on Report.

Amendment 56A seeks to outlaw harassment on the basis of sexual orientation in schools, as well as in services and public functions. If bullying pupils because of their sexual orientation constitutes harassment, it is very important that that should be covered. Harassing a child because they are gay is obviously one of the most serious forms of harassment. It is the classic example.

Amendment 56B seeks to outlaw harassment in schools on the basis of what the Bill calls "gender reassignment", although we would prefer "gender identity". Harassing a pupil because of their gender identity or because they are "trans" or in the process of gender reassignment is, again, surely unacceptable.

At present, the Bill contains no protection against harassment relating to sexual orientation outside the workplace and in schools, and no protection against harassment relating to gender reassignment in schools. Therefore, these amendments seek to bring in protection for schoolchildren and public service users against harassment on the basis of sexual orientation and school pupils on the basis of gender reassignment. Because of potential freedom of speech concerns, both the proposed new clauses in my amendments use the conjunctive definition-"and"-so that you have to show not only the violation of dignity but also an,

Amendments 61 to 63 seek to amend Clause 40 on a different matter-that is, third-party harassment. As it stands, the clause makes an employer liable for failing to take steps to prevent harassment by third parties against employees-for example, where someone is sent by an employment agency. However, subsection

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(3) says that this applies only where the employer, A, knows that the same employee, B, has been harassed on two prior occasions. That means that where a client of A-say, an employer who is an employment agency's client-harasses a number of A's employees on numerous occasions, so long as the same employee has not been harassed twice, A is not liable for failing to take preventive measures to stop the harassing behaviour. Therefore, these amendments broaden the protection covering third-party harassment of employees by ensuring that an employer cannot avoid liability by exposing a different employee to third-party harassment on the same grounds. They also ensure that third-party harassment extends to a person who has applied for employment.

Obviously we need to listen very carefully to what the Government say on Amendment 106 in the name of the noble Lord, Lord Ouseley. I am not sure that he has spoken to it yet; if he has I apologise.

Amendments 106ZA and 106ZB would make it unlawful for the responsible bodies of schools to harass pupils on the basis of sexual orientation or gender reassignment. Clause 85(10) currently allows the responsible body of a school to harass current or potential pupils on the grounds of sexual orientation, as well as gender reassignment and religion or belief. There is evidence that harassment on these grounds within schools is a serious problem. Therefore, deleting Clause 85(10)(a) and (c) would remove sexual orientation and gender reassignment as exemptions. The amendments would mean that teachers and school bodies could not harass students because of their sexual orientation.

I am sorry to have gone through all that in so much detail, and I am perfectly sure that it will make sense only when we have heard the Minister reply in full, but I hope that that is a convenient and fairly speedy way of dealing with the issue.

Baroness Gould of Potternewton: My Lords, I rise to take part in this debate principally to deal with the last point that the noble Lord, Lord Lester, raised about harassment in schools. First, however, it is important to make it clear that while evidence of harassment from a range of sources has been raised, it is suggested that in most of those cases, the victim could potentially have brought a direct discrimination case. To the Government, that means that there is no reason to extend any of these harassment provisions. In practice, not all harassment incidents will be covered by the Bill as it stands. Direct discrimination will not cover harassment where there is no actual or hypothetical comparator or, in instances, where others are treated equally badly.

I return to harassment in schools and the exclusion of a school's liability for children who suffer harassment on the grounds of gender reassignment, religion and belief or sexual orientation-harassment by teachers or other school staff as opposed to pupils, serious as that is. Many people find it hard to understand why harassment of school pupils is prohibited on grounds of race, gender and disability, while sexual orientation, religion or belief, and gender assignment should be explicitly excluded. There is no reason for this exclusion as there is clear evidence of harassment in schools on

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the grounds of sexual orientation, gender assignment and, to a lesser extent, religion and belief.

Occurrences of gender reassignment issues are rare at school age but are not unknown and when they occur there is significant risk of serious harassment. The 2007 Stonewall report, The School Report, concluded that 65 per cent of lesbian and gay secondary school pupils in Great Britain had experienced homophobic bullying; 41 per cent of those had been physically bullied and 17 per cent had experienced death threats. The noble Lord, Lord Lester, made the point about bullying and harassment. To me they are indivisible. Therefore, if I use the word "bullying", I am also using the word "harassment". To continue with the Stonewall report, 30 per cent of lesbian and gay pupils report that adults have been responsible for incidents of homophobic bullying in their schools.

The UK charity Beatbullying has just reported that of more than 800 children between the ages of 11 and 16, 23 per cent had been harassed because of their religion or belief. The young transgender person forming their identity in school faces bullying and harassment. Some 64 per cent of young trans-men and 44 per cent of young trans-women will experience harassment and bullying in school, not just from their fellow pupils but also from staff and teachers. A provision that protects school pupils from harassment on the grounds of gender, race and disability, but not on other grounds, carries the clear public message that harassment on grounds of gender reassignment, sexual orientation or religion or belief is permissible.

It is often said, and has been said by Stonewall, that the Bill as it stands actually covers all those cases. I have yet to have anyone actually come to me and illustrate that. It is said, but I want to know. If such a case of indirect discrimination in which a school pupil was harassed was actually found and identified, could someone show me where in the Bill that person would be protected?

Having said all that, I appreciate that the Government have sought to address this particular problem in government Amendments 138 and 139, which I welcome and which give me some little comfort. As I read them, these amendments strengthen the case of it being discriminatory for a teacher or anyone else working at a school to harass or bully a pupil because of their sexual orientation or gender identity. I really hope that that is the case. I wait with interest to hear my noble friend's reply to the debate so that she can show me that that is so.

8.45 pm

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