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Lord Elton: In equating harassment with bullying, I align myself with the noble Baroness. I also wish to express a wider concern. Bullying in any form on any grounds is unacceptable and every school ought to have a duty to protect every child from it. That is difficult to do, and it is not always possible to identify what is going on. One can only identify the person to whom it is happening. The child involved is often reluctant, for reasons of fear, retribution or amour propre, to accept that it is happening. Bullying can take many forms; it can be verbal as well as physical. The concern that I am trying to express is that by

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picking off particular sorts of bullying, we may somehow reduce the importance of protecting children from all other sorts of bullying, which can be just as harmful or miserable. I hope that the noble Baroness will bear that in mind and reflect on it between now and Report; or if she can say something now, I would be glad to hear it. I am reluctant to subscribe to something that focuses interest on one particular area of bullying which might reduce it on bullying as a whole.

Lord Lester of Herne Hill: The problem is that the Bill already singles out certain forms of harassment and bullying. We are trying to fill the gap. If it is on one of the protected grounds it is a particularly invidious form of bullying which belongs in the Equality Bill, but I quite agree that other forms of bullying are equally objectionable. This Bill cannot deal with those, so we are concerned with filling the gap.

Lord Elton: I accept that, but it is rather like filling the gaps in a sieve, as it is unlikely to have sufficient effect. I do not want to detain the Committee unnecessarily now, but we need to give our minds to it. I regard it as a weakness of the Bill as a whole, not just something to be considered in this amendment.

Baroness Howe of Idlicote: I was very taken with what the noble Baroness, Lady Gould, said. Indeed, I rather wondered why she had not spoken in favour of some of the direct discrimination, indirect discrimination and harassment points that I was trying to make. The noble Lord, Lord Lester, is right that if we leave these groups out we will be creating a division with the rest of the bullying that we are attempting to tackle.

I fear that the business of bullying in school reflects to some extent the parental attitudes-it clearly must do. It also indicates that we have not taken seriously enough or attempted to deal with some of the ways in which this could be combated much earlier. I remember referring previously to a group of schools that literally make it their business to ensure that someone who is a tiny bit older than every new child entering the school has a duty to see that the child settles in. If anything goes wrong the responsibility lies with the one who is meant to be mentoring that child. We could make it a positive duty in every primary and nursery school that whoever is new to the set-up is integrated and taken for what they are, warts and all, and sees themselves as part of the community. That is what we are all about. We are an extremely varied community and it is crucial that that begins early.

Lord Elton: It is indeed crucial, but there is a limit to how much we can legislate for the proper care of children. The noble Baroness is speaking of proper pastoral care in school, but if we were to start making laws about all pastoral care it would, first, take up an enormous amount of parliamentary time and, secondly, kill the school.

Baroness Warsi: I thank the noble Lord, Lord Ouseley, for his very interesting speech on Amendments 51 and 106. I want to make a few short points on Amendments 56A, 56B and 106. The first is that we on these Benches would of course like to reduce bullying in schools and make sure that no child is made to feel

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unhappy or treated badly for any reason, whether it be for their colour of skin, gender, religion, sexual orientation or any other characteristic, protected or not protected. Nevertheless, as my noble friend Lord Elton said, we believe that in situations where bullying is happening between children-the most obvious third party in this case-the law is not the right place for it to be addressed. There is already clear guidance on this from the Department for Children, Schools and Families. This is an issue which should be dealt with by the school and the appropriate school authorities. The intention behind the amendment is truly laudable but, unfortunately, I am not sure that this is the right way to find a solution to the problem.

Baroness Thornton: This group of amendments seeks to extend and clarify the protections against harassment in the Bill. I will address all the amendments in the group and speak to government Amendments 138 and 139 at the same time. We are confident that there is no gap in the Bill in the protection against conduct which amounts to harassment. In some areas such as employment there is specific protection, and where this is not the case, a remedy is provided by way of detriment. I hope that these remarks will show that that is the case.

In Amendment 51, the noble Lord, Lord Ouseley, seeks to extend the third limb of harassment provisions to all relevant protected characteristics. Currently, the third limb of harassment covers the situation where, for example, a woman is dismissed and believes that the real reason why this has happened is that she refused to sleep with her boss. This protection only applies to sexual harassment and harassment related to sex and gender reassignment. Amendment 51 seeks to extend this protection to all relevant protected characteristics. However, we do not have any evidence that this form of harassment is a problem in the workplace; and where this protection applies now, it is to comply with our European legal obligations.

I now turn to a number of amendments which have to do with harassment in schools. I recognise that there has been some concern about the fact that the Bill does not explicitly apply harassment protections on the grounds of sexual orientation and gender reassignment to schools. The fear is that this might leave schools free to harass pupils on these grounds. Amendments 106ZA and 106ZB, tabled by the noble Lord, Lord Lester, would put right this supposed deficit while applying a rather higher test of harassment than exists elsewhere in the Bill, for reasons which he has explained and which I understand. However, we are confident that this is not necessary and I hope I can persuade him that that is the case.

The Government are very clear that school children should not be subject to detrimental behaviour because of sexual orientation or gender reassignment and that the Bill should support this policy. We have examined all the examples that have been put to us of behaviour which anyone would understand to be harassment and we are confident that there is not a gap where there is unacceptable treatment of a child by a school. Situations such as a teacher ridiculing a child because of his sexual orientation or a teacher encouraging other pupils to mock a pupil because he was undergoing gender reassignment would be considered less favourable

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treatment and therefore amount to direct discrimination. In fact, in any situation we can envisage, it would be unlawful discrimination for anyone working in a school to bully a pupil because of his sexual orientation or gender reassignment. That is the position that we intend to make absolutely clear in Amendments 138 and 139, to which I now turn.

Clause 204 provides general interpretation for the purposes of the Bill. This clause makes it clear that detriment does not include unlawful harassment as defined in Clause 26. Through the Explanatory Notes to the Bill, we have sought to explain two things. First, this means that where the Bill provides harassment protection explicitly, it is not possible to bring a claim for direct discrimination by way of detriment on the same facts. Secondly, it means that where harassment is not prohibited explicitly-for example, in the case of sexual orientation and gender reassignment in education in schools-detriment includes unwanted conduct that violates a person's dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. Therefore if a pupil was subjected to unwanted conduct by his school that satisfied the definition of harassment in Clause 26 and he believed that it happened just because he was gay, he would be able to seek a legal remedy under Clause 85. Depending on the facts, this might be direct discrimination by way of detriment.

However, a number of organisations and Members in another place have expressed concerns that it is not clear that this provision in its current form can be read in the way we intend. These amendments are therefore essential to remove those doubts and clarify exactly how the provisions will work. I hope that many of those who have expressed concerns will be reassured by this clear statement that behaviour that amounts to harassment will be caught by the discrimination provisions where explicit harassment provisions do not apply.

Amendment 106 was tabled by the noble Lord, Lord Ouseley. I understand his concerns over a sensitive and important issue. I assure him that I fully understand that bullying is a terrible problem that can ruin the lives of young people. The Government take it very seriously and are doing everything we can to tackle it. The relationship between one pupil and another is not covered by discrimination law and we do not think it appropriate that it should be. It is obvious that the relationship between a school and its pupils is covered, and I assure the noble Lord that there are already statutory duties on schools to deal with bullying. Head teachers in England and Wales are under a duty to put measures in place to prevent all forms of bullying and the Department for Children, Schools and Families has provided guidance for schools on dealing with racist, sexist, religious, homophobic and transphobic bullying, as mentioned by the noble Baroness, Lady Warsi. The guidance makes it very clear that a school must take all these forms of bullying seriously and that a failure to do so would mean that it would be vulnerable to discrimination claims.

The equality duty in the Bill will also have a part to play in ensuring that schools address issues around the treatment of gay and transgendered children in schools. For example, it should encourage schools to develop

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and improve their anti-bullying strategies to deal effectively with the issues that arise in individual schools. We think that making schools liable to face charges of harassment because of bullying by pupils or third parties is a potentially divisive measure that could lead to unforeseen outcomes, such as schools' bullying policies being driven by the fear of litigation, or even money intended for education being used for the payment of legal fees and damages. I believe that we already have measures in place for schools to protect pupils and to deal with bullying in all forms, including bullying because of a protected characteristic.

Amendment 56A, tabled by the noble Lord, Lord Lester, also concerns harassment in the provision of public services and public functions. The noble Lord is seeking to ensure that users of public services are not subjected to harassment related to sexual orientation. It is true that people using public services do not have the same degree of choice about using them as those who are seeking commercial services where-if they do not like the way they are treated in a shop, for example-they can go elsewhere. Nevertheless, despite public consultation and active engagement by government officials with individuals and organisations who say that the type of conduct to which these amendments would apply goes on, these groups have provided us with no evidence to support that view. We are confident that the direct or indirect discrimination provisions would cover any unwanted conduct that service users may encounter. We should not forget that the equality duty has a role in ensuring that public authorities, in their capacity as service providers and in the provision of their public functions, will now have to give due regard to the need to foster good relations in respect of all protected characteristics, including those in respect of which no equality duty yet applies.

Amendments 61 and 63 extend liability for third party harassment to cover applicants for employment, but it is difficult to envisage a situation in which this protection would be necessary. It is unlikely that a customer or client would be in a position to harass an applicant for a job, much less repeatedly, and no evidence has been presented to indicate that harassment of applicants is a problem. The proposal would impose significant burdens on employers, and we believe it would be a disproportionate extension of the law.

In Amendment 62, the noble Lord, Lord Lester, seeks to extend employer liability for third-party harassment. This would cover the scenario, for example, where an employer would be liable for sexual harassment of a female by a client when he knows that that or another client has previously subject other female employers to sexual harassment. Only in these flagrant cases is it appropriate to go beyond the normal protections afforded under discrimination law by making an employer liable for failing to prevent the actions of third parties over whom he has little or no control. This is what Clause 40 now does.

This extension would go much further and impose a costly liability. We are aware of the concerns that the noble Lord, Lord Lester, raised. Under the harassment provision of British discrimination law a person needs to show either an intimidating, hostile, degrading or offensive environment, or that their dignity was

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violated, whereas the definition in the related European directive required both these limbs to be satisfied. However, the two limbs largely overlap, so if there is any extension to the European approach it is of limited effect.

Conduct that violates a person's dignity almost invariably also creates an offensive, degrading or humiliating environment for that person and vice versa. Where the harassment is unintended the reasonableness test, as I shall call it, that a court or tribunal must apply ensures that, along with the complainant's perception, all the circumstances of the case and the reasonableness of that perception are taken into account in deciding whether the conduct can constitute harassment. For these reasons, I ask the noble Lord to withdraw his amendment.

9 pm

Lord Lester of Herne Hill: My Lords, I will explain where I strongly disagree, not where I agree, so that I save time later and do not have to speak to any other amendments in this area.

First, it is not correct to say that without that word "and" one is not creating a very dangerous concept. "Dignity" is not a legal rule. It is a value. To allow someone to bring a claim on the basis of their dignity is a dangerous thing to do. It is not saved by the requirement of reasonableness because it still allows the claim to be brought. Like the right reverend Prelate, I suspect that we will seek to deal with that on Report.

Secondly, I hope noble Lords will forgive my saying that this is the most convoluted and complex way of dealing with a problem that the noble Baroness, Lady Gould, has drawn very clear attention to. Instead of doing the simple thing, which is to make clear in the Bill that homophobic bullying on the basis, for example, of sexual orientation, is to be included, we are told that Clause 204, which is an interpretation clause, is to have the following language to tell the public what the law is. I shall read it out because it is hilarious to think that anyone should come to the conclusion that this is the right way of dealing with an important problem. The amendment states:

"Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication"-

notice the double negatives piling up-

I expect Ministers have had that explained to them and understand what it means. What it actually means is that you still have to show discrimination and not harassment, even though the concepts are quite different in the Act. Harassment is one thing and discrimination another. The question raised by the noble Baroness, Lady Gould-why we do not do the simple thing and deal with this problem in the Bill-has not been answered.

I made it clear to the Government that this is one of several things that my party attaches an enormous importance to; there are about four of those core major things. I am sorry to say that I am not satisfied by the answer. We will have to come back to this at a later stage.

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Lord Elton: I want to pursue what I was saying a little further. The noble Lord, Lord Lester, said that it was not possible within this Act to address all aspects of bullying and that we could only fill the gaps between those which had already been specified. I suspect that the Long Title would enable us to do something quite simple and would please the noble Lord, Lord Ouseley. A very nice obligation would be placed on schools if we just tweaked a little his Amendment 106 to make it read:

"The circumstances in which the responsible body of ... a school"-

rather than stating "such a school"-

leaving out "under subsection (3)(a)", and then take it out of the limitations of Part 2. On the occurrence of a second occasion of the bullying of an individual, there would be a legal duty to intervene.

I do not like imposing legal duties on common-room staff, but when this problem cannot be solved in any other way, which it has not been, I would not object to trying this. It seems to me that that would be possible and would be within the Long Title.

Baroness Thornton: As ever, the noble Lord comes up with solutions that no one else has thought of. I know that he wants to determine what the proposers of these amendments think.

Lord Elton: I was seeking the opportunity to get the opinion of the noble Lord, Lord Lester, on the pronunciation of the principle at stake. I think that principle is expressed as inclusio unius, exclusio alterius-if you put some things in, you imply that everything else is left out. We are putting things in which I do not think that we should.

Lord Lester of Herne Hill: I am delighted to hear the noble Lord, Lord Elton, using Latin because he may not know that since the reforms of the noble and learned Lord, Lord Woolf, I am not allowed to use Latin in court any more. I am not even allowed to use "writ" because that is considered to be not user-friendly, so I have to say "claim form". I continue to say "writ" and I continue to use Latin, and I am very glad that he has done so as well.

Of course, I am sympathetic to the idea that we should legislate to deal with all forms of bullying, but in this Bill we are dealing with equality of treatment without discrimination on specified grounds. What I seek to do is more modest; that is, to make sure that bullying harassment on those grounds covers all the grounds and not only some of them. The expression noscitur a sociis-if one is showing off-might just as well apply, in the sense that in looking at the whole of what one is talking about, it is completely irrational to give the message, except through this convoluted stuff, that homophobic bullying in a school is not to be treated in the same way as racial bullying. That is the rather modest thing we are trying to do.

Lord Ouseley: My Lords, I have heard the explanation from the Minister on both my amendments on third-party harassment in schools and trying to extend the harassments application in Clause 26. I am not convinced

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by the answer I was given with regard to Amendment 51. I certainly would like to come back to that on another occasion. Equally, from what has been said by others who are not happy with the explanation on Amendment 106, I hope that we can get an assurance about looking at this again. I do not wish to detain the House, and on that basis, I seek leave to withdraw the amendment.

Amendment 51 withdrawn.

Amendments 52 to 54 not moved.

Clause 26 agreed.

Amendments 55 to 56B not moved.

Clause 27 agreed.

Clause 28 : Application of this Part

Amendment 57

Moved by Baroness Warsi

57: Clause 28, page 15, line 6, leave out paragraph (a)

Baroness Warsi: Amendment 57 is to probe the application of age as a protected characteristic. The purpose is to ascertain from the Government the exact reasons for excluding those who are under 18 from the protected characteristic of age. In another place the Minister said that this was not the best way to protect children with regard to public services. We fully take on board the points she made about the importance of addressing deeper problems, such as resource allocation or finding better and more efficient ways of using existing resources.

Nevertheless, Young Equals, a group of charities and children campaigning to stop age discrimination, is still concerned about the prevalence of discrimination facing those under the age of 18. It quotes a Department for Children, Schools and Families survey which states that 43 per cent of under-18 year-olds reported that they had been treated unfairly because of their age. Moreover, nearly two-thirds of teenagers felt that they had experienced age discrimination in some form or another. In this survey, age discrimination was the biggest example of discrimination cited. There does, therefore, seem to be a problem. Could the Minister inform the House whether the Government have any plans to address this problem within this Bill? The suggestion in Committee in another place appeared to be that other solutions to this problem were being considered, but the Solicitor-General set out clearly that discrimination law was not the best place to sort this problem out. Will the Minister set out some of the alternative solutions and different ways in which the problem might be addressed if the Bill is not the place to do it? We accept that the Bill may not provide the best vehicle, but can the Government offer any assurances to Young Equals on this count?

In another place, the Minister stated that it might be difficult to include children under the age of 18 in the section on provision of services and public functions because different ages would have to be treated differently. The Solicitor-General cited that there was a great difference, for example, between the needs of a two

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year-old and a seven year-old, and those of a 72 year-old and a 77 year-old. This, of course, is true and this thinking is used to define the fact that there are rules stating that young people can and cannot do things at certain ages. This may be for their own protection, such as the age for legally purchasing alcohol, or it may be for the benefit or others, with specific services that cater for an older clientele. This is a sensible approach and differential treatment must be maintained.

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