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27 Jan 2010 : Column 1505
Essentially, I seek to make sure that only workable duties are imposed on public authorities and that those duties do not create division, but encourage cohesion. The most reverend Primate the Archbishop of York has already referred to the danger of encouraging silos. I am very concerned that once one deals with religion and belief as though they are the same as race or gender, one raises problems regarding free speech, for example-which the noble Lord, Lord Hunt of Wirral, will remember that we grappled with when we dealt with race-hate speech and whether the law should be extended to cover religious-hate speech. There was a movement, especially among British Muslims at that time, for religious-hate speech to be treated in exactly the same way as race-hate speech. The noble Lord, Lord Hunt, and I managed to achieve a victory, whereby religious-hate speech was treated differently from race-hate speech.
We had a similar problem with blasphemy. The antique common-law offence of blasphemy gave rise to demands that it should be extended to protect Islam against insults. That was a dangerous idea, and we dealt with it by abolishing blasphemy. To use that disgusting simile, we shot the fox and got rid of the problem.
The problem with Clause 148(1) is that in paragraph (a) public authorities must
- "have due regard to the need to ... eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act".
That is admirable. It includes religion and belief, or lack of belief, and that is fine.
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Clause 148(1)(c) refers to the need to:
- "foster good relations between persons who share a relevant protected characteristic and persons who do not share it".
That means promoting good relations between persons of particular faiths and those of no faith. There is everything to be said in favour of doing so. Clause 148(3) builds upon that by requiring due regard to be placed on advancing equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it, in particular the need to remove or minimise disadvantages, meet needs, encourage people, and so on.
My concern is that religion and belief are extremely important, but we do not want thin-skinned or zealot-minded people to start attacking public authorities because they represent particular sectors and say that the authorities are not advancing equality of opportunity-whether they are scientologists, Muslims, Jews, atheists, humanists-and that as they do not share the same characteristics as others, they will judicially review the authorities if they do not do so.
The problem is that if my amendment is accepted, it would be said by some that I am creating some kind of hierarchy by taking religion and belief out and leaving in all the other protected characteristics. I am not creating a hierarchy; I am seeking to recognise that religion and belief cannot simply be treated identically for the reasons I gave about cohesion and the wish to avoid divisiveness. One person's religion is, unfortunately, another person's blasphemy, and there is no way in which those can easily be reconciled.
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I am very pleased that, at this late hour, I am in the presence of the most reverend Primate the Archbishop of York. For this reason, among many others: the only way in which my amendment can, in the end, succeed is-if I can put it this way-if he and his colleagues liberate us and allow us to do so. If the position of the Church of England were that in some way it wished this to remain as it is, I expect that the Conservative Party-although not always correctly described as the Church of England in politics or the other way round-would probably not support getting rid of Clause 148(1)(b).
I hope that in this debate, at the least, my concerns might lead others to say that they have concerns and that might lead the Minister to say that she will go away and think about this again. I do not seek to do any more than that, but if I could accomplish that this evening, so that we can all think about this more, I would think we had done something really important at this late hour. I beg to move.
The Archbishop of York: My Lords, I never believed that the noble Lord believes that the Church of England has such authority-certainly, the Lords Spiritual do not see it that way-but, if he does, he is probably assuring our future in this House for a very long time.
The trouble with the subsection about which the noble Lord, Lord Lester, is concerned is that Clause 4 defines nine protected characteristics, including religion and belief, and Clause 10 gives a peculiar definition of religion. It states:
"Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief".
You are really opening a huge can of worms. The amendment would disapply the advancement of equality of opportunity in relation to the duty of public sectors in the cause of religion and belief. I believe the noble Lord, Lord Lester, is of the view that the duty specified would open doors to giving protection to a plethora of beliefs, religions or lack of them. I have always worried when legislators pass laws in matters of belief where courts might be invited to interpret the doctrines. Courts should be left out of all of that because it is so complicated and difficult.
I have some shared concerns with the noble Lord on this issue, mainly over its likely chilling effect for public authorities in their dealings with religious organisations, with people of different beliefs and those of no beliefs at all. I am concerned it could be used to set up all sorts of religions, beliefs or lack of them. People will then say they are being neglected and not having equal opportunity.
There are those who worry that if we remove this public duty in relation to religion and belief from the Bill we portray religious freedom as a lesser liberty than others. Is there a way in which we could stop this chilling effect? Perhaps this amendment does not properly address the problem. There are already nine protected characteristics; would the best thing be to simply delete that whole section? Are we setting up a hierarchy?
When it comes to religion in terms of immigration, I would sound a caution over whether you would meet the test of the human rights convention. It is very difficult, because I could say tomorrow that I believed in nothing and then claim I believe in a mighty angel
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Can the Minister say how we would maintain the protected characteristics without creating this chilling effect for local authorities? Perhaps it needs to be, in the words of the noble Baroness, Lady Campbell, about meeting "a need" instead of this equality of opportunity, which is so vast I do not know what it is. I have grave anxieties and I can see local authorities having to be monitored because someone somewhere has claimed that their opportunities are not being met because they have no belief. Then the courts would have to adjudicate. Can the Minister please help us on this?
Lord Harries of Pentregarth: The case for retaining the words of the Bill is that both internationally and in this country religion is increasingly a marker of identity. Religion is not just a disembodied, wispy, platonic idea; it is embodied in people who have particular physical characteristics and those are seen by the wider public as having an identity. All sociologists would now recognise that one of the major features of the modern world is the way that religion has become a marker of identity, and therefore that is a strong argument for retaining the words in the Bill.
The Archbishop of York: When the noble and right reverend Lord looks at Clause 10, he will see that it says:
"Religion means any religion and a reference to religion includes a reference to a lack of religion".
That is a problem. It goes on:
"Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief".
It is no longer about identity; it has gone on to somewhere else. That is the problem. I agree with him that religion is important, but this thing is cast so wide that a chilling effect is coming over me.
Baroness Young of Hornsey: I support the amendment of the noble Lord, Lord Lester-I think. It was interesting listening to the first part of the most reverend Primate the Archbishop of York's comments, and the chilling vision of what might happen in a local authority. Suddenly, a vision of the Jedi versus the Thetans flashed before me: chilling indeed.
Seriously, there is a whole debate about the issue of identities, which is not about identity being physically fixed and absolutely straight down the line. Identity is much more fluid and subject to change, particularly in a globalised world with globalised cultures, but I do not want to get into that. I understand what the Government are trying to do by including the phrase "lack of belief", but it makes it slightly unwieldy. I speak as a humanist and somebody who feels it is important to put down a marker for people who do not have a particular religious affiliation.
This is a very difficult juggling act. We are not only trying to bring together all those different pieces of legislation, but to bring all those different identities
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Baroness Butler-Sloss: I do not mind which of the noble Lords will be speaking, but perhaps I may ask how one is going to cope with this position. I very well understand how the most reverend Primate the Archbishop of York sees the chilling effect. However, since he has raised this, I also look at Clauses 4 and 10. Clause 4 in particular sets out the key concepts of equality and protected characteristics. It seems difficult to exclude it from the advancement of equality, under the "Public sector equality duty". Almost all the other protected characteristics, with the exception of gender reassignment, are to be found in Clause 148, and that may well be why the Government have kept it in this particular clause. Taking it out may also create certain difficulties where it is included in the key concepts throughout the rest of the Bill. How we are going to deal with this is worrying.
The Archbishop of York: I began with that: I said that the difficulty with the amendment of the noble Lord, Lord Lester, is that it removes the two key characteristics which are already outlined, and it may look as if there is a hierarchy. I did not like his amendment, but his arguments are very convincing. For me, it is a matter of drafting.
Lord Lester of Herne Hill: I will explain to the noble Baroness. I have not removed it from Clause 148; I have removed it only from Clause 148(1)(b). In other words, the duty in relation to religious discrimination et cetera, and promoting good relations, applies across the piece to all the protected characteristics. All I am seeking to do is to apply it differently in relation to Clause 148(1)(b), and I have tried to explain the reasons for that.
Baroness Butler-Sloss: Forgive me, and if I am wrong I apologise for wasting the time of the Committee, but in Clause 148, one talks about advancing equality for protected characteristics. The protected characteristics which are the basis of Clause 148 are described in subsection (6). You could not go back to subsection (4) because you would be tied to the exclusion of religion or belief in Clause 148. That may well be the reason why the Government have included this. I would be very worried that the general concepts would be excluded in religion or belief because there is no other definition of "protected characteristics" for the purpose of this clause. That is the problem for me at least.
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Lord Hunt of Wirral: Listening to the debate, I feel a little like a spectator. I know that the noble Lord, Lord Lester, feels passionately on this subject and I have shared many a platform with him arguing the sort of issues we are now debating. I completely agree with the most reverend Primate in recognising that there is this chilling effect, about which we have to be
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Baroness Thornton: My Lords, I will speak first to Amendment 111 and, secondly, to Amendment 112, which is a different type of amendment about a separate issue. The equality duty is to get public bodies to think about the discrimination that individuals may be suffering or may be likely to suffer and then consider whether there is anything that they can or should do to tackle it. We know from the evidence available through the Equality and Human Rights Commission, and the equalities review, that some people with religious beliefs-for example, Muslim women-or without religious beliefs are suffering disadvantage or have different needs. If we talk about different needs, some people with a particular religion or belief who engage with public services may have certain needs-for example, dietary requirements, or they may not be able to sit exams on holy days. Advancing equality of opportunity involves thinking about whether the service you provide is one that everyone is able to make use of, not just those people who fit into a traditional mould. It should mean more sensitive, personalised services from which everyone can benefit. I think we would all agree about that.
The problem with this amendment is that we suspect that it might create and build a hierarchy of inequality into the duty, which would send a completely wrong message. It could suggest that we do not consider disadvantage linked to religion or belief to be as bad as other forms of disadvantage. But we also understand that competing demands may occur. If they do, an integrated duty that embraces all strands provides the best legal framework for considering how decisions affect all groups, and not just some groups. We also believe that the guidance to the equality duty, which would have to be carefully drafted, could cover and make clear the responsibilities of public bodies in relation to promoting equality of opportunity for religion or belief.
However, I have listened carefully to the noble Lord, Lord Lester, the most reverend Primate the Archbishop of York, the noble Baroness, Lady Young, and the other contributors to this debate. The noble Lord, Lord Lester, and the most reverend Primate in particular made compelling arguments, which led me to believe that the best thing we can do at this stage is to take this away and think about how we can best achieve what we want to achieve. I take on board very much the concerns expressed in the debate. I ask the noble Lord to withdraw the amendment on that basis.
Amendment 112 would not require immigration authorities to take the equality duty into account as far as age and race are concerned, but they would be required to have due regard to the need to advance
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This exception is not designed to be a blank cheque to permit the immigration authorities to evade their responsibilities. It is intended to ensure that, where necessary, they can exercise the essential functions in these respects without the possibility of hopeless and irrelevant challenges, so I request the Lord to withdraw the amendment.
Lord Lester of Herne Hill: I am extremely grateful to everyone who has spoken, especially the most reverend Primate and the Minister. I want to make two points. I have not spoken to my Amendment 112 on immigration, but I want to refer to it now. It illustrates how the notion of one size fits all is not applied by the Government themselves and shows how they treat religion differently. It is worth looking at because I am not sure that I agree with paragraph 2(1) on immigration. I am not sure that anyone will have focused on the strange thing that is happening here. The provision says:
"In relation to the exercise of immigration and nationality functions, section 148 has effect as if subsection (1)(b)"-
the one that I am concerned with-
- "did not apply to the protected characteristics of age, race or religion or belief; but for that purpose 'race' means race so far as relating to-
That means that the Home Office is taking a new power to exclude someone from entering the country on the basis of their religion or belief, or on the basis of their race defined as,
but not colour. We cannot turn someone away because they are black. We can turn someone away because of their nationality-quite right. We can turn someone away because of their ethnic or national origin in certain circumstances-again, quite right-and now we can turn them away because of their religion or belief.
In that provision the Government are creating a hierarchy. They are allowing discrimination on the basis of religion or belief and taking it out of Clause 148(1)(b), which shows that the notion of no hierarchy is not even consistently applied by Her Majesty's Government themselves.
If noble Lords turn to the Explanatory Notes, where the explanation for this is admirably well set out on pages 124, 125 and 126, they will see that examples are given about how Clause 148 will apply. The first
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"The duty could lead a local authority to introduce measures to facilitate understanding and conciliation between Sunni and Shi'a Muslims living in a particular area, with the aim of fostering good relations between people of different religious beliefs".
I accept that that is in Clause 148(1)(c) and should remain there, but no example is given here to justify including religion and belief in Clause 148(1)(b).
I mention those things for further thought. I am grateful to the Minister for taking this away and I
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Clause 148, as amended, agreed.
Schedule 18 : Public sector equality duty: exceptions
Amendments 112 to 114 not moved.
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