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One can readily understand that harassment of young, gay students in schools can be disturbing and alarming for them. I raised this issue at Second Reading and shortly thereafter received an e-mail from someone in Northern Ireland underlining the concerns about harassment of gay pupils. Likewise, we would all abhor the harassment of those going through the transgender process. These amendments primarily establish in law a protection against harassment and also challenge the Government, who resisted these amendments when they were raised by my noble friend Lord Lester in Committee on the basis that they do not believe there is a gap in the protection. The amendments provide the Government with an opportunity to explain why they think that gap has been plugged.
On Amendments 36 and 37, Clause 85(3) states:
"The responsible body of such a school must not harass ... a pupil [or] a person who has applied for admission as a pupil".
Subsection (10) then says that in the application of Section 26, dealing with harassment,
It then includes gender reassignment and sexual orientation-the two paragraphs we are trying to delete. It almost seems as if the green light is being given to school bodies to go ahead with harassment, although I know that that is not the Government's intention. When you see exemptions set out so starkly, some explanation is required.
I understand that the argument that the Government have rehearsed in the past is that the application of what is now Clause 210(5) indicates that where there has been an exemption in respect of harassment in particular circumstances, it will still be possible for a
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My noble friend Lord Lester of Herne Hill took part in debates during the passage of the Equality Act 2006 about the third exemption in Clause 85(10), relating to religion or belief. He argued strongly for that exemption on the grounds that there are distinctions. I am sure that we will return to this later in the debate this evening when we come to the clauses dealing with public sector duty. There are distinctions with regard to religion and belief because, as my noble friend has said on more than one occasion, one person's religion is another person's blasphemy. Whole issues of freedom of speech and expression arise and he certainly believed that the exemption was necessary to avoid legal uncertainty or misconceived or divisive claims. If the Government's argument with regard to gender reassignment or sexual orientation is that discrimination claims can be made by virtue of Clause 210(5), does that in any way open the door for any of the legal uncertainties that my noble friend raised in the past in relation to religion?
Finally, it is my understanding that nothing in the Bill would protect a pupil being bullied by another pupil because of any protected characteristic. However, a school's failure to deal with homophobic bullying against a pupil when it deals with other types of bullying could amount to direct sexual orientation discrimination. That being the case, it would be helpful if in replying the Minister could indicate what steps are being taken, over and above the steps that we have already heard about in recent months, to ensure that schools take a proactive approach to matters such as tackling homophobic bullying, which puts pupils who are lesbian, gay, bisexual or transgender at a disadvantage compared with straight pupils. I beg to move.
4.45 pm
Baroness Wilkins: My Lords, I shall speak to Amendments 37, 38, 39, 40 and 41 in my name. The Disability Discrimination Act explicitly provides for the reasonable adjustment duties in education to be anticipatory-that is to say that the duty is to disabled persons generally and not just to an individual disabled person. The provisions in the Bill are not so explicit; in fact, they are at best confusing.
As noble Lords may remember, the noble Lord, Lord Low of Dalston, spoke about this at Second Reading, and I first raised the matter of anticipatory adjustments for disabled people in education in Committee on 19 January. My noble friend the Leader of the House said that she would write to me on this matter, and I am most grateful to her for her letter, in which she tried to assure me that the provisions in the Bill were already anticipatory and did not need changing.
Unfortunately, despite my noble friend's swift and helpful reply, the disability lawyers were not convinced that the provisions were explicit enough to make the law clear. I was therefore pleased when the noble Lord, Lord Low of Dalston, moved an amendment in Committee the following week to make the duty explicit.
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I am most grateful to my noble friends Lady Royall and Lady Thornton and to the excellent Bill team for their understanding and hard work in reconsidering the matter. It has been resolved entirely to my satisfaction and that of the noble Lord, Lord Low, and our disability legal advisers. The Government have agreed to make the changes that we sought and that are provided for in these amendments and I very much hope that they will be accepted.
Lord Avebury: I draw attention to Amendment 34, which is included in this group and is designed to remove the ability of schools to discriminate against pregnant students. I understand that the Government have indicated that they are likely to accept this amendment, and indeed have moved their own on the same matter. Without this amendment, it would have been legal for a school to expel a student on the basis of her pregnancy. We want to remove that discrimination, and I hope that the result of this debate will be to achieve that.
Baroness Morris of Bolton: My Lords, we debated these amendments at great length in Committee, but I am not surprised that the noble Lords, Lord Lester of Herne Hill and Lord Wallace of Tankerness, have tabled them again, given that the noble Lord, Lord Lester, was adamant that the answer from the Government was not acceptable. Nevertheless, we too remain consistent with our line from Committee. We accept the merit of the noble Lords' intentions. All of us, from all sides of the Chamber, agree that bullying is wrong in all circumstances. This amendment is therefore laudable in its desire and intention to address bullying on the basis of gender reassignment or sexual orientation. However, this is not the right way to tackle the problem of pupil-to-pupil bullying in schools. Where bullying is between pupils, it is not appropriate for the law to be involved. It must be dealt with by the school and by the appropriate school authorities. This is also addressed by clear guidance from the DCSF.
If the intention is to cover harassment from a person in authority-for example, from a teacher to a pupil-such as mocking a youth undergoing gender reassignment, then I agree with the noble Baroness, Lady Thornton, who made it clear in Committee that this would already be prohibited by the Bill. She said that,
- "it would be unlawful discrimination for anyone working in a school to bully a pupil because of his sexual orientation or gender reassignment".-[Official Report, 13/1/10; col. 582.]
The Government then clarified this position with two further amendments. I am therefore unclear whether the amendments in the names of the noble Lords are necessary.
We then debated the amendment in the name of the noble Baroness, Lady Wilkins, in Committee. It was clear that there was agreement about the principle of these amendments. The Minister said that this was not a fundamental disagreement of policy or principle, but was simply a disagreement on the drafting. I know how that can be because I always seem to draft
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I gather, however, that the Government might be minded to accept these amendments to make it absolutely clear that the Bill includes this duty. We also feel that it is important to minimise, as far as possible, the disadvantage which disabled students may experience during their education. We would therefore not object to these amendments, which are, after all, a difference of drafting about a principle with which we all agree.
Baroness Royall of Blaisdon: My Lords, I turn to the amendments on harassment, tabled by the noble Lords, Lord Lester and Lord Wallace, and the noble Baroness, Lady Northover. I am at one with the noble Lords in seeking that the Bill should ensure that lesbian, gay and trans pupils in schools, and indeed lesbian, gay and trans customers, are protected against bullying behaviour by schools and by service providers. As noble Lords said, it is abhorrent if gay and trans pupils are bullied at school. I am therefore grateful to them for tabling the amendments, as it gives me the opportunity again to state very clearly that such protection is already ensured by the Bill as it stands. These amendments seek to plug a perceived gap in protection, mainly for schoolchildren but also for users of goods, facilities and services provided by or on behalf of public authorities. We gave firm assurances in Committee that no such gap exists, and I make that absolutely clear now. I am grateful for the support of the noble Baroness, Lady Morris.
Behaviour that constitutes harassment as anyone would understand it is already covered by the definition of direct discrimination. Pupils subjected to ridicule by their teachers because of their sexual orientation or their gender identity, or customers insulted or turned away by service providers for the same reasons, will be able to claim that they are suffering direct discrimination by way of a detriment.
We have looked long and hard at whether there might be a genuine need to extend specific provision that is modelled on the harassment clauses that apply elsewhere to schools and to the provision of goods and services, but no one has put to us, and we have been unable to imagine, a scenario in which there is unacceptable bullying behaviour in these contexts and where the direct discrimination provisions would not apply.
Children in schools have been legally protected against discrimination because of sexual orientation since the Equality Act (Sexual Orientation) Regulations came into force in 2007. Those regulations do not refer specifically to harassment, but the guidance to schools on their responsibilities makes it very clear that bullying behaviour is unlawful, and gives specific examples of harassment to illustrate this. The same message will be conveyed very clearly in the guidance on the Bill. The absence of a specific harassment reference makes no difference whatever to a school's responsibilities to the children in its care.
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The noble Lord asked whether the Government were dealing proactively with bullying in schools. The Department for Children, Schools and Families has placed a duty on head teachers in England and Wales to put measures in place to prevent all forms of bullying, and has provided guidance for schools on dealing with homophobic bullying. The guidance makes it very clear that a school that does not take homophobic bullying as seriously as bullying on any other ground is vulnerable to charges of discrimination.
We intend to introduce a new duty on schools to record and report serious and persistent bullying between pupils and incidents of verbal and physical abuse against school staff, so we are being proactive.
On Amendment 34, I thank the noble Lords, Lord Lester and Lord Wallace, for again tabling this amendment, which was debated in Committee and which we accepted in principle then. It completes the protection for school pupils who are pregnant or new mothers. I assure the noble Lord who moved the amendment today and other noble Lords that we still fully support this amendment, and I am very happy to accept it.
Finally, I refer to the amendments in this group in the name of the noble Baroness, Lady Wilkins, on anticipatory duties in education. Although, as the noble Baroness, Lady Morris, said, they will not change the substance of the legislation, I recognise that there is a strong feeling that they will make clearer its provisions in this respect, and on that basis I am very happy to accept them.
Lord Wallace of Tankerness: My Lords, I am very grateful to the Leader of the House for her response to this debate, and to the noble Baroness, Lady Morris, for indicating-I think this was unanimous in the House-that the object of these amendments is to show our abhorrence and to ensure that there is adequate protection for the victims of bullying at school or elsewhere on the grounds of sexual orientation or transgender status. It has been useful to hear that unanimous view expressed and to have placed on the record the Government's belief that there is no gap and that the protection is adequate. I wondered why, if it was not required for sexual orientation, it is required for race-I am sure there is a reason-but it has been worth while to set it out clearly and for the record, as I said. It has also been worth while to hear about the guidance that has been issued and to hear that not to comply with it could open up school authorities to claims of discrimination.
I am also grateful for confirmation that the Government will support Amendment 34, so when we come to it I will make every endeavour to move it. In the mean time, I beg leave to withdraw the amendment.
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Clause 29 : Provision of services, etc.
20: Clause 29, page 15, line 37, at end insert-
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"( ) A service-provider must make reasonable adjustments to ensure that, so far as is possible, no employee is required to be complicit with an action or circumstance to which the employee has a genuine conscientious objection on the basis of the employee's beliefs regarding sexual orientation."
Baroness Butler-Sloss: My Lords, I shall speak also to Amendment 21. I declare an interest as an Anglican-though in relation to Amendment 21, I should emphasise that I am an Anglican and not a member of the Roman Catholic Church, although I am happy to put forward this amendment on its behalf. I am speaking to Amendment 20 on behalf of the noble and learned Lord, Lord Mackay of Clashfern, who is unable to be here today.
It is important to recognise that the matter of conscience is addressed in Article 1 of the Universal Declaration of Human Rights. Perhaps your Lordships will permit me to quote it. It states:
"All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood".
As the noble and learned Lord pointed out in Committee, the question of conscience is a crucial criterion of a civilised state. We in this country recognise conscience in various ways. We recognised it during the Second World War, when people were permitted to be conscientious objectors and to serve our country in ways other than on the battlefield. Doctors, including doctors in the NHS, have the right, as a matter of conscience, not to perform abortions. Consequently we have a current use of conscience in our existing and current legislation.
It is interesting that, so far, there is no ability to have an issue of conscience in relation to sexual orientation. How do we balance equality, discrimination, rights and recognition of the needs of different groups of minorities? All sorts of minorities need protection, not only the minorities who are in same-sex relationships. It is important that we recognise, by a tolerance and a flexibility of approach, that there is a negative effect of anti-discrimination towards some groups in relation to other groups and that that is a matter where conscience should be allowed to play a part. We should be able to accommodate various religions and various cultural beliefs. We are a broadminded society, and the Equality Bill should recognise that too.
There was a case that fell foul of the statutory instrument on equality and anti-discrimination-the case of a marriage registrar who, as your Lordships may remember, refused to officiate at a civil partnership ceremony. She initially won the case but then lost in the higher courts. That was an issue of conscience. She was held to be wrong although other registrars were able to perform the ceremony. Such ceremonies are a very important day, but not every registrar has to officiate at them. Indeed, this particular local authority has an excellent record of looking after civil partners who wish to have the service performed for them. This is a modest amendment and deserves support. I hope the Minister will find its modest dimensions acceptable.
Amendment 21 relates to Catholic adoption societies. At the moment, Catholic adoption societies do not exist; some exist as non-religious societies but none as a Catholic society. The effect of the Equality Act (Sexual Orientation) Regulations 2007 has never been
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In the same way, it is important that same-sex couples should have the right to have a religious service in a church or other religious establishment that is prepared to allow them to do so. That is the subject of Amendment 53, to which I have put my name. I believe that same-sex couples should be able to have religious services in religious establishments where that establishment permits them to do so. As I understand it, both the Quakers and the liberal Jews in some places are prepared to do it. If we think that that is right, it ought also to be right for Catholic couples who wish to adopt to be able to go to an agency that has the same ethos and religious beliefs and will look after that couple in the way that Roman Catholics would wish. However, they cannot do so. I remember having to informally advise the Exeter Anglican and Roman Catholic adoption society that it could not continue using the words that it had used as regards suitable people for its adoption society. As I am sure everybody knows, the Catholic societies are no longer Catholic.
This is a relatively modest requirement that would permit a minority group to work through its own religious beliefs as regards those who wish to become adopters. It does not in any way prevent a gay couple going to any adoption agency. I understand that-to the knowledge of the Catholic Church-under the 2007 statutory instrument, only one such couple went to a Catholic agency, and they were helped to find another agency which was not Roman Catholic that would help them to adopt a child. We are talking about allowing for minorities. We ought to be able to allow for minorities in every way and not decide that they should not have the right to opt out as regards sexual orientation.
I asked a senior founder member of Stonewall, whom I know extremely well and whose aims I very much support, what he thought about my putting my name to this amendment. He said that he saw absolutely no problem with it. He knew very well that gay couples wishing to adopt-and good luck to them-could apply to many agencies; almost every agency, in fact. He did not consider that my amendment in any way infringed the rights of, or was discriminatory towards, gays. I found that a very comforting conversation.
The question really is, what are the outcomes of the 2007 statutory instrument and what would be the position if your Lordships' House did not accept this amendment? Two adoption agencies have closed down, a third is mired in litigation over whether it can continue, and all the other Catholic agencies have given up supporting Catholics, and, of course, have given up those obligations which the Catholic Church had required of the Roman Catholic agencies.
It is very important that same-sex couples should have the right to be considered as potential adopters-as they do, and as they should have. They can apply to many agencies, as I have said. However, it is also important that Catholic families should be able to apply to Catholic adoption societies. I beg to move.
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Lord Waddington: My Lords, I support the noble and learned Baroness as far as these amendments are concerned. It seems grossly unfair to require a person who has been recruited as a registrar of marriages to do something rather different, which is contrary to his or her religious convictions, and register a civil partnership. Yet that is what happened to a local authority employee recently. It seems that the local authority was just trying to make a point at her expense, because it was never suggested that there were not other registrars in the borough with no religious objection to registering civil partnerships who would be prepared to do that work. It was an act of gross unfairness. Here is an opportunity for us, in a Bill that is supposed to be about fairness, to remedy a very obvious wrong.
As for Amendment 21, it seems absolutely tragic that adoption agencies should have been driven out of business simply because of the obduracy of the Government a year or two ago. What possible damage is done if an adoption agency that is unwilling to place a child with a gay couple directs that couple to an agency that is perfectly happy to place a child with them? Here again is an opportunity to put right a very obvious wrong.
Baroness O'Loan: My Lords, I support the amendment in the name of the noble and learned Baroness, Lady Butler-Sloss, and I declare an interest as a Roman Catholic. I think that the House agrees that there must be a provision of public services and that there must be equality of access to the ability to adopt children. There must also be a protection of the freedom of conscience of anyone who is engaged in a public service-with necessary restrictions, of course. There are, in law, many competing rights and the function of this House is to attempt to balance the protection of those rights-not only to preserve the rights of those of different sexual orientation, where the right to adopt can be preserved, but also to protect the rights of religious believers.
It is enormously important in the process of adoption and fostering that there should be an understanding that this process also requires ongoing support for many years. The support that would be supplied by the Catholic adoption agencies would have been support in the context of faith and spirituality. That provision has now been lost to the people. I do not think that I need say any more, other than to support the noble and learned Baroness in this amendment.
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