Direct discrimination

I beg to move amendment 7, in clause 13, page 9, line 5, leave out ‘because of’ and insert ‘on grounds of’.

With this it will be convenient to discuss amendment 132, in clause 13, page 9, line 5, leave out ‘because of’ and insert ‘on the grounds of’.

An amendment to revert the causality of discrimination to pre-Equality Bill wording.

These measures should need only a relatively brief debate. My amendment is similar in nature to amendment 132, tabled by the Liberal Democrats, and it would leave the words “because of” out of clause 13 and replace them with “on grounds of”. That would effectively put the wording in the law back to what it is at the moment. The reason for doing that is twofold.

First, the “on the grounds of” formulation is consistent with all existing legislation and with European equalities legislation. It is the language that existing case law is already based on, and it therefore gives certainty.

The cardinal point, and probably the only comment that I need make on this amendment, is that any divergence or departure from the existing “on the grounds of” is likely to give rise to legal argument. As my hon. Friend has already said, it may well create further uncertainty or perverse or difficult judgments that eventually have to be amended. It would be far better to stick with what has been seen to work since the introduction of disability discrimination in law.

My hon. Friend is absolutely right. This is the only reason given in the explanatory notes for changing the wording:

“This change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Bill.”

I am not quite sure who the ordinary user of the Bill is and it seems to me that the ordinary users of most Acts of Parliament are lawyers, who would be perfectly capable of understanding either formulation. However,  it seems that there is a problem if something is changed that is well recognised—we may set up lots of unforeseen consequences.

Indeed, the Equality and Human Rights Commission is supportive of amendment 7, as is Citizens Advice, so there is clearly a fair bit of concern that there may well be some negative consequences in changing the wording and I am unconvinced by the reason given. The Minister says in the explanatory notes that it does not change the legal position, and she will no doubt repeat that, but given that there are no significant benefits and there are risks that are clearly felt by a number of organisations, will she reflect on whether that risk is worth taking?

The second reason—this is where I suspect there is an argument about whether the measure does or does not change the legal definition—is that the use of the word “because” may indicate that it would have to be established that the discriminator consciously intended to treat someone less favourably on the protected grounds. On the current legal position, proving intention is not required, so the “because” formulation may raise the threshold for proving discrimination claims in that the complainant may be required to prove a conscious motivation to discriminate. That is what lies behind the concern from those organisations that this measure may represent an inadvertent change in the law—they accept that it is inadvertent.

The final concern is that treating someone less favourably because of a protected characteristic might be read as meaning that the protected characteristic must be the whole or the main reason. Under current law, the protected grounds should in no sense whatever be the treatment in question, so covering less favourable treatment, which is only partly attributable to the protected characteristic. Putting the word “because” in the Bill could change the established understanding of what is required, so introducing, as my hon. Friend the Member for Daventry said, a lack of clarity, which may also provoke more unnecessary legal challenges.

The Minister really needs to do the job of explaining not just why the Government believe that this measure does not change the law, but why a change of wording is necessary. Given that the Bill is carrying over existing legislation, making a change requires more than the Government saying it does not make any difference; they need a good reason for making the change, given that some organisations think there are significant risks involved. I will listen carefully to the Minister, and if we are not persuaded by what she says we may seek to test the mood of the Committee.

I shall speak to Liberal Democrat amendment 132, which is not greatly different from the Conservative amendment. It differs only in the word “the”, which we are quite happy to go without. We will support the Conservative amendment, because we agree that this measure might open the door to legal wrangles.

I am grateful to the hon. Lady for her slight variant on our amendment, because I think it is the first time in recorded history that I have ever spotted the Liberal Democrats using a definite article about anything.

I do not know—this place! Talk about reform! Given that the measure might open some legal argument or wrangle, and given that the existing wording has been the subject of much testing and is tried and tested, it seems unnecessary to open it up to further interpretation of meaning when that meaning is already proven in case law. To get rid of that uncertainty, we will support the Conservative amendment.

One of the key objectives of the Bill is to simplify the law and make it more accessible. I do not think for one minute that the only people who are going to read it are lawyers, the easy-read bit at least. We deliberately put the plain English—the explanatory notes—face to face with the necessary legalese to make the Bill accessible to people way beyond lawyers. With that principle in mind, it makes sense to talk in ordinary English language.

The word “because” is much more natural when one looks at the reason for something. If someone is asked, “Why did you do such a thing?”, the answer will mostly likely be, “Because.” It is highly unlikely that people will say “on the grounds of”, and that is the point. However, the two terms mean the same thing. I do not know what they mean in—I am glad that the hon. Member for Oxford, West and Abingdon is here to hear me mention it again—the “Evan Harris English Dictionary of Peculiar Terminology”, but in the “Oxford English Dictionary”, the word “because” is defined thus:

“By reason of, on account of”— on the grounds of. It is absolutely spot on and synonymous. I do not think that it can be argued that there is any difference of meaning—they are absolutely synonymous.

The question in a case of direct discrimination is, “Why was he treated in that way?” The answer would be, “Because”, and that is what we need to capture. It need not give rise to any legal wrangles. The courts are now rejecting suggestions that a change in language necessarily implies a change of meaning. There is no change of meaning. I have said it twice; perhaps I have said three times now. It is very clear that there is no change of meaning.

In a 2005 case, Regina v. Z in the House of Lords, Lord Woolf said:

“Techniques in drafting of section 3 of the 2000 Act and section 19(3) of the 1973 Act differ. Section 3(1) of the 2000 Act is drafted more succinctly and more clearly than its predecessor. It is in a crisper, more contemporary style. However, there is no reason to think that the difference in style means that it should be interpreted in any different way from its predecessor in the 1973 Act.”

All the less reason for any court to think that it should be interpreted differently. Now I am saying for the fourth time: there is no change in the meaning from the change of words.

I am grateful to the Solicitor-General, not least for the assurance that she has given the Committee, which no doubt will be remembered and may even appear in the courts in due course. It occurs to me—I defer to her legal knowledge—that “on the grounds of” is, in a sense, a more specific set of tests referring to particular characteristics of the alleged discrimination. It may well be that there is a concern where there is a multiple complexity of factors involving discrimination or the possibility of discrimination, some of which may  be on grounds of the protected characteristics. Others might be much more at large. Is the Minister satisfied that the new formulation reflects the balance of those as well? As far as I am concerned, if there is discrimination it is indefensible whatever the legal wording, and I hope we are not reversing that in anything we are considering.

Of course we are not. The hon. Gentleman is absolutely right. There are two specific examples where it has been suggested that the measure might change the meaning. Let me deal with those in a moment. I also add that there will be some guidance and a rolling programme of training on the Bill in general to make that point for county court and employment tribunal judges.

The first of the two specific issues that were raised is whether “because of”, unlike “on the grounds of”, may imply the need for intent—that is the concern of Conservative Members. The answer is no: “on the grounds of” and “because of” are both indicative of causation, but they do not imply required consent. It is perfectly possible to characterise direct discrimination as being because of a protected characteristic. The courts will be able to reject the suggestion that because the word has changed, the meaning has too, as I have just explained through the mouth of Lord Woolf.

The other express concern is that, to be discriminatory, treatment does not have to be based only on discrimination—it could happen a number of reasons of which discrimination is one. Would changing “on the grounds of” to “because of” mean that the discrimination need be the only ground for less favourable treatment? Again, the answer is no, because they are totally synonymous and there is no change in the nature of the essential question of why a person claiming direct discrimination was treated in the way that he or she was.

The Bill is more modern and exactly as Lord Woolf decided. Its style is crisper and more contemporary than that of more ancient law. It is good to change and keep up. When a new Equality Bill is introduced to help people with their rights at work or when they feel that they are being discriminated against, they want to be able to look at one page for the technical stuff and the other page for the explanation. That is why we have put in the plain English: to encourage people to look at it. There is no point in passing the Bill, after a long Committee stage, if it just hangs around on the shelf and is only brought out by lawyers to rebut discrimination. The point of the Bill is to change the culture and to move forward the whole cause of equality. As we shall discuss presently, it will require public authorities to drive the equalities agenda through their policies. We want it to be as accessible as possible, and this is just a small example of how we can do that. I assure the Committee that it will not be to the detriment of anyone’s rights.

I am grateful for the opportunity to respond to the Minister’s dictionary definition, particularly given that she used my name in reference to it. She read out the definition of “because of”. It had three parts, one of which was “by reason of” and another “on the  grounds of”. It does not necessarily follow that because a new word includes another formulation that it is synonymous with that formulation. It could include it, but go further. Regardless of what the courts might determine, people reading the Bill might think that “by reason of” is different from “on the grounds of”. “Reason” implies a cognitive action, and that might cover intent, which the Minister is keen to avoid. I do not think that she has made the case that “because of” is synonymous with “on the grounds of” by reason of that dictionary definition. I do not think that the Government will find it easy to defend their position, well intentioned though it might be, during the Bill’s progress, including in another place, because of that problem—and on the grounds of that problem.

I want to make it very clear that those three are synonyms. It is not about one including the two; it is about all three meaning the same.

I listened very carefully to the Minister’s comments and to the intervention of the hon. Member for Oxford, West and Abingdon. It is perfectly sensible for the explanatory notes to explain the legal terminology in plain English. I do not know how many Committee members have ploughed through both parts of the Bill, but, to be perfectly frank, the words “crisp” and “contemporary” did not leap out at me as I went through the 200 or so clauses. It is a perfectly good Bill, but crisp and contemporary it is not. It uses much language, such as “protected characteristic”, that one does not generally hear down the pub. Unless, of course, the Solicitor-General’s local pubs are different from those in the Forest of Dean.

Probably not.

We have some wonderful pubs in the Forest of Dean, and the hon. and learned Lady is always welcome to come and sample them to boost our tourism industry. [Interruption.] I acknowledge her reciprocal invitation. I am not convinced by the Minister’s argument, however, which I do not think was a very good one, so I would like to test the Committee’s opinion.

Question put, That the amendment be made.

The Committee divided: Ayes 8, Noes 10.

Question accordingly negatived.

I beg to move amendment 130, in clause 13, page 9, line 5, leave out ‘a’ and insert ‘one or more than one’.

An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.

With this it will be convenient to discuss amendment 131, in clause 24, page 17, line 18, leave out ‘a’ and insert ‘one or more than one’.

An amendment to permit claims of direct discrimination and harassment on multiple form of discrimination.

The amendment would permit a claim of direct discrimination and harassment for multiple forms of discrimination. I know that the Government are consulting on the matter but, interestingly, the consultation document prompts this question: on what principle of justice or fairness should new legislation aimed at fairness deliberately exclude protection against discrimination based on a combination of two or more characteristics, discrimination against which are individually prohibited, because it would be burdensome to business? The key is that justice is not about whether business finds something burdensome to act equitably. The purpose of the measure must be justice.

The business community has concerns about the increase in litigation, because there could be multiple bites of the discrimination cherry. It is concerned that that would increase settlement costs and that it would be cheaper to settle than to go to court. Under the Bill, cases of direct discrimination and harassment on multiple forms of discrimination are not outlawed, but we think they ought to be, and the Government are consulting on the issue. However, all organisations seem to think that such a measure is necessary, so I do not understand the need to consult again.

My reading of the situation is that the Government believe that combining two protective characteristics would be adequate, because it would cover most claims, but that might result in permitting combinations of more protective characteristics. In response to the “Discrimination Law Review” consultation, public concern that the current law does not adequately protect those who experience multiple discrimination was identified. I am sure the Minister can think of many such examples.

If we amended the wording from “a” to

“one or more than one”, a claimant would be able to bring the appropriate claim for discrimination on more than one ground, and on any number of grounds that were deemed appropriate. We need to give voice to that now, because we do not believe that we need to wait for consultation. There has already been two years’ consultation on this.

I shall be very brief. Having listened to the evidence, I believe that the hon. Lady is slightly wrong in the way in which she characterises what the Government have done. I read their written statement and their consultation document. They acknowledged that a great deal of the feedback to the “Discrimination Law Review” said that there should be a multiple discrimination provision, as the hon. Lady says. That is why they made a proposal enabling claims that combine two protected characteristics in the consultation document. I read both the written statement and the discussion  document that the Government published in April and thought that they made a great deal of sense. We will obviously look carefully at the specific legislative proposals that the Government introduce.

During the evidence-taking session, there was a discussion about whether combining two characteristics made sense, or whether more were needed. There was general agreement that it should be possible to combine two, but there was not much evidence of cases where two would not enable the protection. There did not seem to be much evidence to support having more than two characteristics, given the complexity involved and the benefits that would be derived.

Given the fact that the law should be based on dealing with real, identified problems, the proposal to bring in multiple discrimination on two protected characteristics seems to be the right one. If, in future cases, there are many situations involving more grounds, which the Government’s proposal would not solve, the matter could be looked at again. From the evidence that we heard in Committee, the Government’s approach seems sensible. The hon. Lady’s amendment would insert “more than one”, implying that all the protected characteristics could be brought together, and regrettably, we are not able to support it.

I thank the hon. Gentleman for those remarks. This is a question of striking the right balance. I believe that the law would not become more complex because that complexity is already there as a consequence of the existence of the strands. Intersectional cases would become less complex, because the law would sit more naturally and suit the facts. Again, the fact that something is more complex or burdensome should not be the guiding line as to how many strands, protective characteristics or multiple discriminations are allowable. However, I take the hon. Gentleman’s point.

That is important, because the Bill is not just about what the law says, but about what happens in reality. Part of the benefit of bringing different pieces of discrimination law together in a more straightforward Bill, is that protection will not be offered only by the law. The reality on the ground will be that all those organisations that have to behave in accordance with the law—such as those providing goods or services, or employers—will find it easy to understand. The problem with making something complex, particularly if it is disproportionate to the wrong that we are trying to solve, is that in making it more complex, it becomes more difficult. There might be a purer basis in law, which we would all be happy with, but in practice, it might more difficult to deliver the rights and protections that are so important for the people we are trying to look after.

I suspect that the Government are not going to accept the amendment, and I will withdraw it after the Minister has responded. We need to work on that balance. [Interruption.] Sorry?

Why not withdraw it now?

I would like to hear what the Minister has to say in response.

The amendment would have the effect of allowing claims of direct discrimination and harassment to combine in an unlimited number of any or all protected characteristics. The great mathematicians advising me have worked out that covering all the possible combinations would give 511 possible combinations of action, which not surprisingly, is rather a worry for business. It would be highly complex, most people would find it excessively burdensome, and it would leave individuals wondering where and how on earth they could exercise their rights in the face of such a lot of possible combinations.

We recently published a document. There was a good deal of discussion in the earlier review, as the hon. Member for Forest of Dean has said, and the intention of the new document, “Equality Bill: Assessing the impact of a multiple discrimination provision” was exactly as expressed in its title. A clause in the document limits it to two grounds. The point was to ask a specific question of a particular business and other interested parties about what the impact of the clause on that limited number of grounds would be, so as to provide a some clear understanding about the l scope of the measure.

In short, the hon. Lady’s proposal would be unduly complex and excessively burdensome and, since she has let the cat out of the bag by saying that she is going to withdraw it, I shall not add any more detail. However, our discussion document closed for responses last Friday. We are looking at the feedback we have received and, once we have done so, we will make a decision about whether protection from multiple discrimination, as set out in our document, can be effective, workable and proportionate. If it can, we will introduce it.

On timing, will the Minister confirm whether it is subject to the question of how long it takes to go through those responses? Do the Government intend to table an amendment to the Bill on Report in the Commons, or wait until it goes to the other place? On a procedural point, I think it would be better to allow the elected House to consider it first, if that is possible within the timing.

Yes, it is our ambition to do it here—ideally while the Committee is still sitting. I am not sure whether we will manage that or not, but we want to do it here if it is to be done.

I listened carefully to the Minister and thank her for her response. Regardless of whether or not I withdraw the amendment, it is important to have her thoughts on the matter on the record. It is a matter of judgment and I accept the Minister’s view that the best way forward is to look at the combination of two of the strands. I also welcome the fact that the Commons, rather than the Lords, will be able to scrutinise the measure so, for now, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 194, in clause 13, page 9, line 6, at end insert—

‘(1A) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic.’.

It is a pleasure to have my first opportunity to make a contribution under your chairwomanship, Lady Winterton.

Chairmanship.

I stand corrected. Amendment 194 states that discrimination does not include marketing or promoting activities targeted at a particular group of people, whether or not they share a protected characteristic. It is tabled primarily to elicit some reassurance from the Minister that routine, perfectly normal and perfectly lawful business activities will remain as such.

I am sure the Minister is well aware that it is standard business practice to segment markets, and to target particular groups on the basis of sound business principles. I hope that she will reassure us that that can continue and that there will be no question, in the future, of subjecting businesses’ marketing plans to rigorous legal scrutiny. They have not required that scrutiny in the past.

There are two issues: one is market targeting, the other is limiting access to a product or service. The second one is different and is deliberately not part of the amendment—that is something for separate discussion later. There are, however, many companies whose business models could be cast into doubt if we do not clarify this proposal. There could be all sorts of dangerous and worrying implications if we do not nail this down.

Does my hon. Friend agree that one of the difficulties is that any discrimination likely to be alleged will probably be indirect? For instance, a marketing programme might not necessarily be expressed as only for the over-70s, or whatever, but in practice it might well add up to that as a result of careful market segmentation. People would then say, “Ah, this is discrimination.”

My hon. Friend has summed it up neatly—we tabled the amendment for that reason, and to give the Minister a chance to allay any fears among investors, management and staff in many companies up and down the country. There are many examples. We have heard evidence and submissions from companies such as Saga, which specialises in marketing to, and providing holidays for, people above a certain age. Club 18-30 self-evidently targets its products at the other age range, and Sheilas’ Wheels markets insurance to women drivers, as well as a series of other people. Those companies have particular market aims and are targeting their advertising at certain segments of the market. I am not sure, but it is entirely possible there are holiday companies which market their products and aim their promotional activities at Muslims wishing to go on the Hajj. Those companies would be legitimate and we would not want to stop them. In my constituency of Weston-super-Mare, there is a hotel which specialises in holidays and respite for disabled people and their carers. Clearly, everybody would want that to be perfectly legitimate and allowable in future.

This is not an area I am particularly familiar with. If a golf club wanted to attract members, but only gave incentives or direct marketing to white people, would that cross the line in any way?

I am hoping the Minister will sketch out where she thinks the Bill already does this and provide some guidance as to what is allowable, what will continue to be allowable, and where the Bill draws the line. That is why we have tabled the amendment. I am hoping it is straightforward for the Minister to give us comfort and reassurance, but it is important that we get this on the record at an early stage in the Bill’s passage so that investors, management and staff in any affected business can be reassured in future.

Service providers want to maximise business, and depending on the nature of it, that will entail legitimate targeting of campaigns at certain groups. Like the businesses that have been quoted, another example is a company that specialises in selling make-up tailored to black women. They should be perfectly entitled to target that audience by, for instance, advertising in the black press or using photographs of black models. The car insurance company which was quoted is an example that I would have used too.

It would be where an advert discriminates against a person with a protected characteristic that it would be unlawful. If the make-up advert denigrated white women, or the car insurance advert indicated that lesbians need not apply, such marketing would fall foul of the existing legislation and of the Bill. Of course, the EHRC would take action in such a case.

Technically speaking, marketing and promotion is not a service so it is not within the Bill’s scope, unless it is discriminatory in the way I have described. People receive flyers and read adverts before they use the service. It is only at the point of the customer’s engagement with the service provider that it complies with part 3 of the Bill.

Does the Minister accept that many companies specialise within the marketing, advertising and promotional world, advising those who produce the ads and promotional activities she is describing? If they are participating in creating those promotional vehicles, might they none the less be captured in that way?

I do not know about that. The real point is that if any marketing or promotion is discriminatory, it would be in the scope of the Bill. It is discrimination so would come in as such. However, the Bill deals with goods, facilities and services; advertising is not within that definition. It is worth noting that the stakeholders he alluded to—representing financial services and the age interest—have concluded readily that marketing to specific age groups is no problem. They are not asking for any change from this legislation.

Perhaps the Solicitor-General could help on the concern which built up in my mind as she answered. It is about the nature of the campaign itself, picking up the point that the hon. Member for Hornsey and Wood Green made. Suppose somebody—it might be for the best of motives, or it might not—produces a campaign that is presented as a general marketing campaign but uses models who are all white. I am not talking about two or three, but about a large population. One might reasonably assume that something is going on; they are either totally culturally unaware, or they are wilfully trying to misrepresent the population. Is that  activity discriminatory by itself? If so, with whom, as no service is being provided, and what action can be taken about it?

In so far as it was discriminatory, it would be discriminatory not so much for being targeted at a group but for excluding a group. If it excluded or denigrated a group as it went along praising its target group, that would be discrimination in the ordinary way, and all the provisions that we are used to would fall into place exactly as they would with any other kind of discrimination. There is adequate protection. Targeting is not a problem as such, so there is no need for the amendment. I therefore invite the hon. Member for Weston-super-Mare to withdraw it.

I think I understand the Minister to have said—I will play it back to her to ensure that we have got it absolutely clearly—that provided that promotional or marketing activities are done constructively and positively to emphasise the benefits of the thing being promoted and the group to which it is being promoted, rather than running down anyone else, any company that indulges in market segmentation or targeted marketing should be on the right side of the law. If that is the case and I have understood it correctly—I think that I saw the Minister nodding just now—

I am just waiting for inspiration.

Perhaps I should talk slowly until inspiration arrives, in the shape of bits of paper from her advisers. If I have understood it correctly, we would be willing to accept it. I am, however, hopeful that the Minister will be able to confirm that before I can say genuinely that I am willing to withdraw the amendment.

Will my hon. Friend give way?

I would be delighted to.

I sensed that my hon. Friend might require some assistance. While this is going on, will he consider also—I am still not wholly satisfied by the Solicitor-General’s response—that when I described certain conditions that involved a marketing campaign and not the provision of a good or service, she said firmly that if it excluded a group of the population maliciously or, as I suggested, due to a lack of cultural awareness, it would somehow be covered by discrimination? However, if it is not directly part of the provision of goods or services, how could it be? Will he reflect on that, and perhaps reflect my concerns to her?

I thank my hon. Friend. I see that inspiration appears to have struck the Minister; at least, a piece of paper has been passed to her. If she is willing to reply to us, that would be helpful.

I hope that the hon. Gentleman noticed how indirectly the paper was sent to me. In a nutshell, targeting is fine as long as it does not exclude or disadvantage people. I hope that that is clear enough.

I thank the Minister for that. That implies an approach in the Bill similar to that taken elsewhere to positive action. It is okay to target particular groups of people in a positive way, but denigrating them or running them down is not. On that basis, and having had that clear instruction and reaction from the Minister, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 222, in clause 13, page 9, line 6, at end insert—

‘(1A) This section applies to a person (B) who is perceived by A to have a protected characteristic, regardless of whether B does in fact have that characteristic.

(1B) This section applies to a person (B) who has an association with a person who has a protected characteristic.’.

This is put into statute two provisions which are explicitly and implicitly provided for by the relevant directive and by case law.

This is an important amendment that deals with the question of discrimination based on association and perception. Some of the points were raised on Second Reading, so I will not go back to the beginning. I draw the Committee’s attention to the ruling in the European Court of Justice case of Coleman v. Attridge Law. The judgment was that discrimination on the basis of association in respect of disability—I think that the same thing should apply to age, in a read-across to the need to care for old or young people—needs to be covered, and indeed is covered, in European law.

I note that on Second Reading and at the time of the judgment, the Government said that they agreed and had no problem with that. Furthermore, the explanatory notes state in paragraph 71 that the definition in clause 13

“is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic (for example, is disabled), or because the victim is wrongly thought to have it (for example, a particular religious belief).”

That is a perception and, in that case, a wrong perception.

The point of the amendment is to probe initially, depending on the Minister’s response, the reasons why the Government are not taking the opportunity to set it out clearly in the statute that direct discrimination is to cover discrimination based on association or perception. That seems a straightforward thing to do, although if the Minister identifies problems with the phrasing of the amendment, it is unlikely that I shall seek to defend the words in it, but if she does not, the question remains why it is not in the Bill.

A number of organisations share the view that I have expressed; it is not an unusual view. For example, the Discrimination Law Association states that it is important for these prohibited forms of discrimination—discrimination on the basis of association or perception—

“to be referred to explicitly on the face of the legislation. In other words, the prohibition on discrimination by way of association and/or by reason of perception should be expressly stated.”

The Equality Commission for Northern Ireland makes exactly the same point. It says that the commission recommends that the Bill should expressly state that discrimination due to perception and association is unlawful in relation to all protected characteristics. Carers UK says that it believes that carers, employers and even lawyers who are not experts in discrimination law will have problems interpreting and applying the provisions unless that is expressly stated.

Those organisations have direct experience of dealing with these matters and they see merit in placing the measure in the Bill. The Government must have considered that and there must be a reason for not doing it. Given the unanimity of view of those organisations, it would have to be a good reason.

The EHRC makes exactly the same point in its briefing. It is concerned that the measure is not in the Bill. It therefore completes a set of four groups of people who are concerned that it is not included. In fact, it makes the point that the explanatory notes do not form part of the Bill and have not been endorsed by Parliament; they are not, and are not meant to be, a comprehensive description of the Bill. Therefore, relying on the explanatory notes is not ideal, and although ministerial statements are useful, it is very difficult to ask people who need to know about this provision to be aware of every ministerial statement.

The EHRC states that it would also like to see in the Bill express protection from discrimination based on association and perception generally. It says that for a number of reasons and it is important to enumerate them. First, like the other organisations, the EHRC believes that it is important to make it clear that that is covered as part of an educational experience, although I know that that alone does not warrant the inclusion of a measure in the Bill. Secondly, it is concerned that there may otherwise be perceived to be some regression. It says that discrimination because someone is perceived to be or is associated with someone from a particular racial group or religion or belief group or sexual orientation is currently prohibited in some areas, and the concern would be that if the “because” language—we have already debated that, but not on this point—was not interpreted by the courts as including perception or association, that would run the risk of regression.

I do not think that that is a particularly strong point, because the courts are clearly bound by what the Minister would describe as the intention of Parliament and, indeed, the ruling of the higher court, at least in the case of Coleman. However, the EHRC also makes the point, which I agree with—this point is important, given what the Minister said about gender reassignment—that perception is so much a factor in respect of protection on the grounds of gender reassignment, especially given how unhappy some of us are with the existing wording, that it is essential that it is very clearly understood that the protection is there in respect of the perception of someone as undergoing gender reassignment, even if they are not or are not proposing to be because, for example, they are merely cross-dressing and they do not do so all the time with a view to going on a journey, as the Minister calls it, permanently to change their gender identity.

The Joint Committee on Human Rights, which has put on its website a copy of a letter that it sent to the Minister, asked the Government the same question: why is that provision not included in the Bill?

It is appropriate to ask now, rather than in a clause stand part debate, about clause 13(4), which specifies:

“If the protected characteristic is marriage and civil partnership”,

as far as work is concerned—employment—people cannot claim direct discrimination by association, because it is only where

“B is married or a civil partner.”

The explanatory note says, without explanation, so it is only a partially explanatory note, that

“a different approach applies where the reason for the treatment is marriage or civil partnership, in which case only less favourable treatment because of the victim’s status amounts to discrimination.”

I think that that precludes discrimination by association. There may be a good reason for that, but it is not explained in the explanatory notes, which is unfortunate.

That is the basis for my amendment, which I hope the Minister will look kindly on, because, although it may not be the first preference in drafting the Bill, I do not believe that it does any harm, and it will certainly satisfy a number of organisations that have expressed concerns.

I shall be brief. We touched on perceived disability and discrimination by association when debating some of the amendments that I tabled on clause 6 and, in that case, the Minister’s explanation was satisfactory, so I asked leave to withdraw them.

The hon. Member for Oxford, West and Abingdon makes some good points. Both the Minister’s explanation and the explanatory note say that the wording in the Bill is clear enough and that it covers what the hon. Gentleman mentioned, but state some concerns that are shared widely. I will listen with great care to the Minister’s detailed explanation about whether the wording in clause 13 adequately captures the points raised by the hon. Gentleman.

The amendment would make it explicit that direct discrimination includes less favourable treatment of someone because of their association with somebody who has a particular protected characteristic, or because they themselves are perceived, rightly or wrongly, to have that characteristic.

The clause derives, in part, as the hon. Member for Oxford, West and Abingdon said, from Coleman v. Attridge Law in the European Court of Justice, which said that the European directive’s definition of direct discrimination implicitly includes the concept of discrimination by association. Although the clause derives from that in part—it is written with large exclamation marks around it at the moment because that is quite a recent decision—in 1975, or thereabouts, our domestic courts reached the same conclusion, which was that, under the Race Relations Act 1976, direct discrimination implicitly included discrimination by association. Our own courts have also held that the definition implicitly includes the concept of discrimination by perception in a different case in 1983.

I say that because we do not have something absolutely new and we are not putting it explicitly into the Bill, which the hon. Gentleman could have argued would have been dangerous, because something new needs to be written in large letters. I used that argument when I talked about listing the people to whom the socio-economic duty was due, saying, “It is a new duty; let us list the people that it applies to so that everyone knows who is in and who is out.” That would have been an argument had those two domestic judgments, both now more than 20 years old, not injected that interpretation into our domestic law, pointing towards the conclusion in Coleman arrived at by the European Court.

The Bill’s definition of “direct discrimination” includes those concepts. I am pretty ready to accept, honestly, that at the very first look at the clauses there is a  transparency argument for making the protection explicit, as some definitions of “direct discrimination” in current legislation do. However, the reason that we have not is to widen the ambit of clause 13, being careful not to narrow it inadvertently.

Before I explain what might at the moment look like an odd concept, I shall say one more thing, which is that we want people to be able to access their rights. I have spoken about that recently, in saying that simplifying the language is an important component of encouraging people to look, and to see what they are entitled to. One might say, “Well, let us put in association and perception,” so that they can see what their rights are in those connections. For the reason that I am about to set out, it is not so wise to do that in this case as it was in the question of “because”. Also, I venture to suggest that discrimination by association or discrimination by perception are quite complex ways of expressing something anyway, and may not throw all that much light on what they are about for the lay person.

Here is the core of why we do not think that we should accept the amendment. The “because of” turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim’s association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

“Direct discrimination” has a number of forms—a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.

The amendment is not perfect, as has been said, but it has been drafted in such a way as not to preclude the clause’s application to other forms of direct discrimination. However, there is always that lawyerly problem—I forget how many members of the Committee, as well me, are lawyers. I know that the Parliamentary Secretary, Government Equalities Office, is. The danger is that, if we name something in a section of a statute, by implication we exclude or devalue things that are not named. In a nutshell, that is the thinking behind not putting in association or perception expressly.

In the example quoted by the hon. Member for Oxford, West and Abingdon, in clause 13(4), he would say—he may be right—that discrimination by association or by perception are excluded. In a way, by analogy with the arguments that I have just launched, that is a powerful implication that association and perception are included in all other aspects of clause 13. However, because there is a change in perception and because it is so central to the world of carers that the law has now emerged and crystallised in the Bill after the Coleman case, we will promote it as strongly as we can to ensure that everyone knows their rights. Outside the ambit of  making the Bill clear, the availability of the new rights needs to be made clear. People probably do not need to worry about that because Carers UK has very much got the bit between its teeth. It is pleased with these changes in the law, and it will certainly ensure that the caring community knows that it will now have these new rights. We will do everything that we can to support the ambition of making the rights transparent.

I hope that the hon. Gentleman will be content to withdraw his amendment because of, first, my clear statement that association and perception are included in the definition in clause 13 and, secondly, the danger that I have set out of naming something and excluding something else.

May I give the Minister the opportunity to respond, if she can, to the point that I raised on subsection (4) about the explanation for that exclusion? I feel that that would be best dealt with in this group of amendments, rather than in a stand part debate. If she is able to do that now, I would be grateful, but I understand if she is not, and she may be able to come back to it in an intervention.

I will return to that point in the clause stand part debate if we have one. However, I do not know what your view will be by the time that we get to the end of the many amendments, Lady Winterton. I will either do that now or I will write to the hon. Gentleman, but I shall let him know.

That is fine. I am grateful to the Minister for giving a full explanation of the Government’s position. I accept that when there is a new provision, it is worth putting into statute. I accept that this is not a new interpretation of the law, but I believe that just because it is not new is not a reason for including it if there are other reasons. I know that that was not the main part of her case, and I am pleased that she recognised the argument for including the provision in the interests of transparency, especially since she felt strongly about the “because of” provision, where the case is somewhat less strong.

A moment ago, the hon. Gentleman made a point about subsection (4). Association and perception discrimination have never been covered in marriage and civil partnership provisions before, because there was never any evidence of need, so we have just carried forward the existing protection to the Bill.

That is useful in that narrow area, because I suspect that it will be raised by the Joint Committee on Human Rights, and it and others can reflect on that answer to see whether a case can be proposed for the exclusion. The logic is that other areas are included because there is evidence of a problem. I will not push that now, but it seems peculiar that, historically, there should have been such non-coverage, even if there was no evidence of harm, because it just sticks out. I shall have to reflect and seek advice.

The hon. Gentleman will probably remember that I said this morning that the consultation showed almost an argument for discontinuing this protected characteristic completely, because there is so little evidence that it causes difficulty. As I understand it, there is absolutely no evidence that association and perception add to the almost non-existent difficulty that it causes. It is right at the bottom of everyone’s scale.

I accept that. I am on the record as saying that legislation should prioritise dealing with mischief, which is why I raised the issue of sexual orientation discrimination in religious organisations. It is not part of my mission to seek out areas that are not covered for the sake of it. However, I will reflect on that.

To return to the Minister’s reasoning, she was concerned that it is important to not inadvertently narrow the ambit of direct discrimination by a misplaced amendment that seeks to clarify. I understand that, although we have not seen—I am not inviting her to do so now—any direct criticism of the amendment that I have provided or such an amendment that might do that. However, I recognise that that is sometimes a good reason for not providing greater explanation within statute.

We come to the Minister’s core reason, which is the concern that including something might imply that other grounds are covered by direct discrimination. I was grateful to her for the information that she provided about the other sorts of things that are covered, such as detrimental treatment on the basis of a refusal to discriminate. The danger of including some parts of the definition might, by extension, imply that the others are not covered, and I need to reflect on what she has said about that. One could say that, if there is a good argument for including the measures in the Bill, she is still able to say and make clear that their mere inclusion does not in any way detract from existing protections covered by discrimination.

On balance, I am not persuaded that there is still a good reason to include such matters, but it is important that the organisations that I cited read the Minister’s words carefully to see whether they are persuaded by her. On that basis, I think it wise for us all to go away and reflect on what she has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 133, in clause 13, page 9, line 10, leave out subsection (3) and insert—

‘(3) If the protected characteristic is disability, nothing in this section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of a disabled person’s disability.’.

An amendment to retain the asymmetric nature of disability discrimination.

This is a familiar discussion about disability and direct discrimination. It is asymmetric and therefore we perhaps have to treat those with disabilities more favourably to bring about an equal outcome, because disability is different from the other protected characteristics in that sense.

The amendment would allow duty holders to treat disabled people more favourably where that is necessary to meet their needs. The reason for the amendment is that the current wording in subsection (3) could lead to  confusion, and it is not as explicit as the Disability Charities Consortium would wish. The key principle is that achieving equality for someone who is disabled requires, as I said, more favourable treatment. That principle is enshrined in the reasonable adjustment duty that is right at the heart of current disability discrimination law.

An employer might need to provide additional adaptations to ensure that someone with disabilities can do their job, and that might be something that would not be available to someone who is not disabled. In effect, the person with a disability would receive more favourable treatment than a colleague who is not disabled. The goal, as I said, is an equal outcome.

I believe that the Conservatives have tabled a similar amendment to the clauses on indirect discrimination. The problem with clause 13(3) as currently drafted is that, according to explanatory note 74, it is apparently intended to ensure that

“in relation to disability it is not discrimination to treat a disabled person more favourably than a person who is not disabled”.

The Disability Charities Consortium, which supports the amendment, is concerned that such drafting might not achieve that intention and might have unintended consequences, because the current drafting does not explicitly refer to “more favourable” treatment, which is such an integral part of disability discrimination law. It refers only to treating people

“in a way which is permitted by or under this Act”.

The DCC is concerned that that leads to a lack of clarity and that the hard-fought-for key principle of more favourable treatment should be made explicit in the Bill.

For the avoidance of doubt and to be absolutely clear that it is within the law to treat those with a disability more favourably, the amendment is unequivocal. It would replace the wording with a very simple statement that would ensure that the meaning of the Bill, which is to allow more favourable treatment for those with disabilities, could not be thwarted. It would ensure that there is no regression from the very important current protection from discrimination that disabled people have, and it would be clearer for those who need to be sure of what they are doing, whether they employers, service providers, statutory authorities and any others who may be affected. Under the legislation, they must be certain that they may treat people with disabilities more favourably. I am sure that everyone in this room will agree with the principle, but the argument is about the wording. How the Minister responds will be helpful to the courts.

Again, I shall be very brief. I have some sympathy with the hon. Lady’s concerns. We are looking for the Minister to do two things. First, we want her to be clear about the effect of the language in the Bill. The explanatory note is clear, but we want the Bill to be clear. Secondly—this goes to part of what the DCC is talking about—will she say a word or two about the guidance either from the Department or the EHRC? We want to be clear about what will be in the Act, but the guidance should be explicit for those who have to use, implement and understand the law, and the intention behind the law should be clear. That would be helpful.

A number of amendments have been intended to make the language in the Bill clear. There are two parts to that. First, we would like the Minister to comment on the legal effect of the Bill. Secondly, we hope that the text that the EHRC produces once the Bill is enacted will be more readable. That is critical, as it will be used by the man in the street and business organisations. The Minister could well reassure the Committee on those two points.

The amendment would make the intent of clause 13(3) clearer. Our intention is to import into the Bill directly the asymmetric nature of the protection that Disability Discrimination Act 1995 gives to disabled people. That has always been our intention; it continues to be our intention, and there is no regression.

As has been pointed out, we say in the explanatory notes that

“it is not discrimination to treat a disabled person more favourably than a person who is not disabled”.

That could not be clearer or more unambiguous. However, clause 13(3) could be clearer and less ambiguous, and we do not think that we have achieved the same transparency in drafting the clause as we have attained in the explanatory notes.

We heard from the disability charities in the evidence-taking sessions. They were worried that the clause was not clear enough. There is absolutely no disagreement about what we are doing in Committee, so we would like to invite the hon. Lady to withdraw the amendment on the clear understanding that we are talking to the disability charities with every intention of attempting to clarify clause 13(3) in some better way. We have a target of doing so on Report if possible.

I thank the Minister for that very helpful response and clear commitment to what we all intend for this part of the Bill, and I am delighted that she will be working with the DCC to find a clear wording. On that basis, I am more than happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 221, in clause 13, page 9, line 20, at end insert—

‘(5A) If the protected characteristic is religion or belief, for the purposes of this section, a claim for direct discrimination on that protected ground can not solely rely on A treating B less favourably on the basis of a manifestation of B’s religion or belief.’.

This is to make explicit in statute existing case law from the Employment Appeal Tribunal in Ladele vs Islington, that one can not claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.

With this it will be convenient to discuss the following: amendment 36, in clause 13, page 9, line 22, at end insert—

‘(b) less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief.’.

Makes clear that treating religious speech less favourably than non-religious speech is a form of direct discrimination.

New clause 3—Freedom of religious speech—

‘A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency.’.

Imitates the wording of guidelines issued by President Bill Clinton in 1997 to protect religious free speech in the federal workplace.

The amendment standing in my name and that of my hon. Friend the Member for Hornsey and Wood Green covers some quite complex areas of case law, and I will not be able to do it justice, partly because of time and partly because, when I finished reading the case that I found most useful, I had lost track of what was said at the beginning, so long and complex was the judgment. However, there are some juicy bits in it that make things clear.

The case also deals with the amendment and new clause tabled by the hon. Member for Glasgow, East. It is useful that we are having this debate, because there is a clear distinction in the position that I am taking, which seeks to probe the position in case law and the position taken by the hon. Gentleman in his amendment and new clause, which I think is wrong and inappropriate.

It is important to make clear what amendment 221 would do. If someone has a requirement in respect of work based on a manifestation of their religion, such as an unwillingness, inability or injunction not to work on a day of religious rest, or some requirements related to clothing, time for prayer or worship, I believe that they should have protection from discrimination when a criterion that prevents them accessing that right is not legitimate or proportionate to what it seeks to do. That is indirect discrimination.

I have supported a number of cases where religious individuals have been treated unfairly by another party. The Sikh bangle case is a good example. A young girl wanted to wear a bangle, but her school sought to prevent her from doing so. That was clearly indirect discrimination on the grounds of religion and belief. The court rightly reached the judgment that it was not justified under the terms of the test for indirect discrimination. I want to be absolutely clear about that.

I am seeking to debate the expectation that we will increasingly see some cases regarding discrimination on the grounds of a manifestation of religion brought to employment tribunals. I will refer to Ladele v. London borough of Islington, because it is a useful case, though not the only one. Suffering detriment on the basis of one’s view that it is wrong that two people of the same sex should be joined together in a civil partnership is direct discrimination, where no justification is permitted. I hope that the Minister, who is wiser than me in such matters, can give helpful clarification that that is the case, even if she does not accept the amendment.

There are a load of similar cases before the tribunals at the moment. Many religious organisations see it as their right, as indeed it is, to test the issue in a series of different matters. It would be helpful if we could say, from the judgment of the Employment Appeal Tribunal in Ladele, which facts can be generalised to other cases—which would we, as a Parliament, want to consider the general rule and intention?

Let me briefly rehearse the case. It involves a lady with clear Christian views, who at the time of the case was charged with providing civil partnership work as part of her job for Islington council. On the basis of her beliefs, which were genuinely and sincerely held, she did not want to conduct the ceremonies or do the registration. There is no doubt about the fact that it was considered essentially against God’s will and she did not want any part of it. However, she was pursuing a public function, and the effect of her position was that she wished the freedom in her role to discriminate against other people.

The Employment Appeal Tribunal overturned the judgment of first instance, and did so in quite stringent and critical terms. It ruled that there was no direct discrimination and that the indirect discrimination was clearly justified by the council on the basis of its seeking to prevent discrimination against gay people and to adhere to its own code of practice with regard to non-discrimination.

For illustration, I will refer to short segments of that judgment, as it goes to the heart of the amendment and is critical. In paragraph 70, Mr. Justice Elias, the president of the Employment Appeal Tribunal, cited the 2007 case of Azmi v. Kirklees metropolitan borough council, where a Muslim woman challenged a school’s refusal to let her wear a hijab. That is a well known case in public policy, and it was debated in the House. Therefore, it is appropriate that we deal with it in the Bill.

The 2007 case said:

“She was a language support teacher who provided such support for students with English as an additional language. The school adduced evidence before the Employment Tribunal to show that language support was more effective when the teacher’s face was visible. It refused her request for that reason. Her claim for direct discrimination failed. (The Tribunal considered that there was clearly prima facie indirect discrimination, although it was justified on the facts.). The reason the claimant wished to wear the hijab was her religious belief; the reason she was not allowed to do so was because it interfered with her effectiveness as a teacher.”

The motive for the detriment was not her religious belief, but another motive. That is why my amendment makes clear that it will be difficult to adduce direct discrimination on the grounds of a manifestation of religious belief. That objective test will never be allowed.

The judge went on to cite the 2008 case of McClintock v. Department of Constitutional Affairs, where a magistrate alleged that he had been directly discriminated against for refusing to place children seeking adoption with same-sex couples. Again, the case was all over the newspapers and was raised during debate in this House. He said:

“The Department insisted that he should apply the law in accordance with his judicial oath. The claim of direct discrimination failed before the Employment Tribunal and was not pursued before the EAT... The President commented that it was ‘prudent’ not to pursue the issue; the evidence was that anyone who was not prepared to give effect to the judicial oath would have been similarly treated. His treatment was not because of his religious beliefs but because of his refusal to honour the oath. (In fact he was not able to establish that his objections were based on religious grounds in any event.)”

That is a second key component: anyone who has that manifestation, whether it is based on religion or not, will be treated in the same way in cases such as this, whether it be by Islington council or the Department of Constitutional Affairs. It would be helpful if, during  our deliberations, the Committee made it clear to people that they should not pursue that line of argument in employment tribunals.

The hon. Gentleman used the word “oath”, which I think is interesting. Does he agree that we are looking for a pluralistic society? One example of that is that, in the courts and in this place, one can either take an oath or affirm. That gives a bit of flexibility. I do not agree with oaths as a religious person, although other religious people do, and people of no religion might also prefer to affirm. Is that not the kind of model that we should be looking for—one that provides some come and go, some flexibility?

I do not think that compliance with the oath is the relevant factor; it may just have been terms of employment. While I share the hon. Gentleman’s view about oaths, I do not want to be drawn down that path as I do not think that is the key point in that case.

The president of the Employment Appeal Tribunal went on to say:

“As to considerations of policy, direct discrimination of course cannot be justified.”

That is a key point and it provides the reason for me raising it with relation to the clause. As one can never justify direct discrimination, it is important that these cases are not found to be valid claims of direct discrimination.

The president of the tribunal continued:

“If the Tribunal were right to say that the fact that the claimant’s conduct was the result of her religious beliefs meant that she was being discriminated against on religious grounds, the employer could never justify any refusal to accede to an employee’s demands that he should be permitted to manifest his religious beliefs, however bizarre they may be. For example, an employee who refused to work on a particular day or days of the week for religious reasons, or who insists on praying at various times in the day, or who submits that carrying out various duties is incompatible with his or her religious doctrine, could in all cases be entitled to insist on doing these things and the employer would be obliged in all cases to accede to these demands.”

In other words, there is not the objective test that is allowed in claims of indirect discrimination.

The president concludes on that point, making reference to Ms Mountfield, counsel for the borough:

“As Ms Mountfield put it, the religious belief would be a solvent dissolving all inconsistent legal obligations owed to the employer. That plainly cannot be right. Indeed, given in particular the fact that beliefs may cover a vast range of subjective opinions, the consequences would be extraordinary.”

I hope that the Committee understands my particular concerns about this.

I finish on the point about the European convention on human rights. Lord Hoffmann, in Regina v. Denbigh High School, another school uniform case, is cited in paragraph 122 by the president of the EAT:

“Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s own choosing”.

It has been argued that, regardless of what our discrimination law says, this should be claimable indirect discrimination to preserve the right to manifest one’s religious belief in accordance with article 9, but as members of the Committee will know, the right to manifest religious belief under paragraph 2 of article 9  is qualified, unlike the right to hold the belief itself and to believe what one wants to believe.

The president, in paragraph 127 of his judgment, quotes from the judgment of Justice Munby in R (E) v. Governing Body of JFS—Jews Free School—and others, an interesting judgment on other matters. The president says that

“it is important to realise that reliance upon religious beliefs, however conscientious the belief and however ancient and respectable the religion, can never itself immunise the believer from the reach of the secular law, and invocation of religious beliefs does not necessarily provide a defence to what is otherwise a valid claim. Some cultural beliefs and practices are simply treated by the law as going beyond the pale.”

That is not a criticism of religion or of the lady in the Ladele case; it is just a statement that we cannot operate proper employment practice if people can claim direct discrimination on the basis of not being allowed to do something that their religion tells them to do, having to do something that it tells them not to do or not being prohibited from doing something it tells them not to do, which is not what the employer wants them to do.

I accept that the phrasing of the amendment might not be appropriate, but it is designed to be not only an antidote to the point made in amendment 36 and new clause 3 by the hon. Member for Glasgow, East but an invitation to the Minister to give her view on whether the Employment Appeal Tribunal—which, unlike some other bodies, sets precedents—is appropriate in this respect.

I have not had time, nor do I think I have the competence, to go into the two-stage test that the hon. Member for Glasgow, East quoted in detail, but it addresses the same sorts of issue. It may well be considered in another place if there is any doubt about the matter.

To save time, I will deal with amendment 36 and new clause 3, because I know that we are keen to make progress. I note that amendment 36 argues that

“less favourable treatment includes placing tighter restrictions on expression related to religion or belief than on expression not related to religion or belief.”

I do not think that that is helpful, because it is generally in cases of religion and belief that tensions between the strands arise. It is unusual for someone to manifest their race in a way that engages the rights of non-discrimination of people in other strands. It is one of the features of religion that its beliefs and manifestations can cause tensions in other strands, and it is our job, and the job of Parliament more broadly in dealing with the Bill, to get that balance right.

I hope that the hon. Gentleman accepts that such matters arise in religion, and religious people must be able to make a claim of indirect discrimination, but that direct discrimination is not the place for it.

New clause 3 is of even greater concern. It says:

“A public authority shall permit personal religious expression by those working for the authority to the greatest extent possible, consistent with requirements of law and the interests of workplace efficiency.”

Obviously, the Minister will give her own response, but I think that the argument will be that

“consistent with requirements of law” makes the new clause essentially unnecessary, as the law is what we are debating. If the provision were to mean anything, it would, almost by definition, fall outside the requirements of the law.

The new clause needs to be considered, but why should personal religious expression trump anything else, if that is the intention of the new clause? The worry is what the new clause would mean and that the hon. Member for Glasgow, East is essentially saying that there could be a general right of conscientious objection for doctors not to prescribe contraceptive pills to women who are not married, not to treat patients who have alcohol problems on the basis of a religious objection to alcohol and a series of other things.

I strongly believe that that should not be permitted in the delivery of a public service. It should not be allowed in the medical profession beyond the existing statutory exemption that applies to abortion services, which I support. Otherwise, we will end up with a broken-up health care system, where individuals have to shop around for someone willing to give treatment that complies with their religious belief.

The object of new clause 3 is something we should resist absolutely, for the reasons that I have given. What effect it would have in practice is a moot point, given the caveat

“consistent with requirements of law”.

I look forward to hearing the views of other members of the Committee.

Thank you for the opportunity to speak under your chairmanship, Lady Winterton. As I did this morning, I want to make it clear that when I speak on religious matters, I am generally speaking on my own behalf, not that of my party.

I tabled the amendments so that the Committee would have an opportunity to discuss the place of religion in our society. To pick up on the final point made by the hon. Member for Oxford, West and Abingdon, it is not my desire for religion to trump other protected characteristics, but it is my desire that religion should not be trumped by them.

Amendment 36 would make it clear that it is a form of direct discrimination to treat religious speech less favourably than non-religious speech. They should be treated equally. It would reinforce freedom of speech for religious people by requiring that any restrictions imposed on free speech are not biased against religion. I hope that most hon. Members will think that that sounds fair. The question is whether it is necessary.

I would like to refer to two cases that have not been mentioned so far. The first is that of a woman called Caroline Petrie. She follows the Christian faith and works in Somerset as a nurse. In December last year she was suspended from work because she offered to pray for a patient. Although the patient was not upset by the offer, she mentioned it to another nurse, who reported the matter. Mrs. Petrie was subsequently accused of breaking nursing guidelines by failing to

“demonstrate a personal and professional commitment to equality and diversity.”

There was a degree of publicity about the case, and eventually the primary care trust invited the nurse back to work. Is it really harmful for a nurse with faith, who cares about her patients, to offer to pray for them? Surely that is not so unacceptable.

I do not want to be drawn too specifically into that case, but I accept that it is germane to the amendment. From the point of view of a professional body, it is inappropriate for a health care professional to seek to impose their personal views on a patient. That is stated clearly in the general medical code of practice for doctors, “Duties of a doctor.”

There is nothing to stop a nurse praying for a patient. It does not have to involve the patient’s knowledge, and as I understand it, religious people would argue that it does not weaken the effectiveness of a prayer if the person prayed for does not know about it. Neither is it inappropriate for someone who is religious to accede to a request made to them by a patient if they so choose. However, in strict, professional terms, it is not appropriate for them to initiate that conversation, as that is not the job of a health care practitioner but the job of a priest. I do not understand why the nurse in this case, who as I understand it had engaged in that practice before and had been warned about it, could not desist from offering unsolicited prayers to patients. There is freedom of belief and freedom of prayer, but there is not the freedom to impose one’s views on a patient.

I suppose that I have a problem with the phrase, “seek to impose.” I do not think that Mrs. Petrie was seeking to impose anything. She was offering another skill that she had. A similar example would be her offering some extra bit of care to the patient—if she was an expert in massage, for example. However, I would have thought that offering is slightly different from seeking to impose.

The idea that prayer is only the job of a priest takes us down an interesting route as far as religion is concerned. With regard to my background, we did not believe in priests as such, in that we thought that all believers were of equal value and could do all of those things. I would not accept something contrary to that.

I take the opportunity of my Whip’s being absent from the Committee to intervene. The hon. Gentleman said that offering to pray was not the same as an imposition, but surely a person who is ill in bed and feeling vulnerable and unwell is not in a position to debate whether they want to be prayed over. It is one thing for a patient to ask for a nurse to pray over them. Personally, I would not want to be prayed over, willy-nilly, if I was lying ill and frail in bed.

I take the hon. Lady’s point. A large part of nursing is about sensitivity and getting to know the patient, among other things. I agree that there could be a time when such behaviour was clearly insensitive, but I suggest that at other times it could be perfectly sensitive and helpful.

I have just realised that I did not answer a question asked by the hon. Member for Oxford, West and Abingdon. Yes, I do believe that prayer makes a difference, whether the person is or is not there to be prayed for.

Mrs. Petrie was not alone in finding that expressing her religion could be hazardous for her livelihood. In March this year, David Booker, a Christian charity worker in Southampton, was suspended under diversity rules after a conversation in which he answered a colleague’s questions about his religious beliefs on sexual ethics.  Mr. Booker had worked as a hostel support worker for four years. His bosses told him that expressing his religious beliefs on same-sex unions broke the charity’s culture and diversity code of conduct.

As I have said, the hon. Gentleman is not a great fan of religion, but he was generous enough to say on Second Reading that he defended Mr. Booker’s rights to express, in moderate terms, his religious beliefs about sexual ethics.

I should explain that, having researched Mr. Booker’s case as far as I can, on the facts as I know them, and no Committee member knows the full facts of either of those cases, which are likely to be fact-specific, the suggestion is that his conduct broke the code of practice—I do not think that the case has been decided yet—designed to prevent people from being harassed. That is really a question of whether the definition of harassment in work, as reflected in an employee’s code of conduct—if it was indeed reflected in such a code—is too broad. Before people dive for suspensions, there ought to be a little more scope to discuss with a colleague, in moderate terms, their religious views on a lonely nightshift.

I hope that the hon. Gentleman will concede that that is entirely different from a health care professional dealing with a vulnerable patient who has not asked any questions at all, and is suddenly asked whether they are gay, for example. What does he think about a Christian saying to someone who is gay, “I’ll pray for your soul,” knowing that position? That is a different matter. I hope that he recognises that.

I accept that the two cases are different. However, in both cases, whether it is an employee or a patient—or anybody else—one wants there to be sensitivity. One of the ideas of Christianity is that one is loving and sensitive, and so on. I have been in situations where one just would not talk about religion or sex, or anything, with some fellow employees, because it would be a disaster, whereas it would be possible to chat with other people in the pub or during a tea break, for example.

I understand that the “Pink News” website spoke out in Mr. Booker’s defence. It ran a piece that concluded:

“Whatever the outcome of this case, it seems increasingly apparent that people have more of a right to be gay than to be religious.”

We can argue about the details of the law—where it has been and where it is—but there is a feeling in society that religion is the poor relation in some cases.

My amendment does not seek to stop employers placing limits on speech. It asks the employers to be even-handed. No employer wants inflammatory speech in the workplace. I am perfectly comfortable with that as long as employers are consistent. If they want to ban all divisive conversation in the workplace, they should apply that ban without fear or favour, whether the subject is music, politics or football rivalries.

A ban on divisive or offensive speech would not fall foul of the amendment, as long as it was applied consistently to religious and non-religious speech alike. The amendment is not limited to employment, but would apply to a definition of direct discrimination on religion or belief grounds for the whole Bill. It would, therefore, apply to the actions of all those who were bound by the Bill, such as local authorities and the police.

As an aside, I hope that the amendment sends a signal to those local authorities that think that religious equality means banning Christmas and such like. They would have to ensure that they were not applying one rule for expressions of secularism and another for expressions of religion. I accept that it is already arguable that imposing unfair restrictions on religious speech constitutes direct religious discrimination, but with all such cases, if we want to tackle real, live injustices, it seems that we have to make the obvious more obvious. I could have cited other cases.

I hope that the Minister accepts that there is evidence of a problem that needs addressing. As I said, there is a feeling that religion is the poor relation in equality law—the equality strand that dares not speak its name. We should not have to state something so obvious in the definition of indirect discrimination in clause 13, but with cases of religious people coming off second best when acting fairly reasonably, it seems that we have to do something to correct the imbalance that has come about in the interpretation and application of equality law.

New clause 3 underlines what has already been said. It is based on the guidelines issued by Bill Clinton in 1997 on freedom of religious expression in the federal work place—that is something practical, which has been used elsewhere. As I said, I do not want religion to trump other protected characteristics, I just want us to have mutual respect.

Finally, amendment 221 would amend the definition of direct discrimination in clause 13. An explanatory note cites the case of Lillian Ladele, who was a Christian marriage registrar. As I understand it, in July last year, at first instance, the employment tribunal found in Miss Ladele’s favour. Its ruling listed various acts of direct discrimination committed against Miss Ladele by Islington council on the grounds of her religious belief: failing to consider her for promotion; deciding to discipline her and threatening her with dismissal; concluding that she had committed gross misconduct; failing to redress allegations that she was homophobic, and labelling and treating her as homophobic; disregarding her concerns about her treatment; and failing to apply its anti-discrimination policies to gay colleagues who were mistreating her. The employment tribunal also found that the council

“disregarded and displayed no respect for Ms Ladele’s genuinely held religious belief” and that it created an

“intimidating, hostile, degrading, humiliating or offensive environment for her on grounds of her religion or belief.”

However, in December last year, the Employment Appeal Tribunal overturned that ruling. It accepted that Islington had acted in an improper, unreasonable and extraordinary manner:

“There were clearly some unsatisfactory features about the way the council handled this matter. The claimant’s beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done.”

However, the tribunal ruled that it did not amount to religious discrimination. It seems extraordinary for the Employment Appeal Tribunal to say that the young lady was badly treated in connection with her sincere religious beliefs, but that she should have no redress whatsoever.

The hon. Gentleman highlights an important issue, which the Minister could comment on when she responds, based on what the Employment Appeal Tribunal said. Notwithstanding its ruling, it made the point that some of the council management had not treated Ms Ladele properly. Where there are conflicting rights, one solution might be for the Equalities and Human Rights Commission guidance to advise employers and other organisations on how to behave and on possible steps to take to deal with employees sensitively. Rather than turning into divisive court cases, matters could be resolved internally within an organisation, with some give and take on the part of the organisation and the individual. That might be a proper subject for guidance. Will the Minister reflect and comment on that in her response?

I thank the hon. Gentleman for his intervention; he makes a very good point that we have touched on before: should there be some kind of purpose clause or something else dealing with conflicting rights? It is clear to the Committee that such situations have arisen in the past and could do so again.

Miss Ladele is taking her case to the Court of the Appeal, and some lawyers believe that the Employment Appeal Tribunal ruling is so extreme in its dismissal of manifestations of religious belief that she is likely to win—we shall see. Enshrining the EAT ruling in legislation as suggested by amendment 221 is therefore a bit premature. I was slightly taken aback by the explanatory note to the amendment, which states that its goal is to ensure that

“one cannot claim direct discrimination when one is treated adversely solely on the basis of behaviour stemming from a religious belief.”

Should people treated adversely owing to religious behaviour never be able to claim direct religious discrimination, no matter how gross and unjust? Surely that is not what we are aiming at. And does that not contradict the approach of the hon. Member for Oxford, West and Abingdon in amendment 217, which states that all behaviour stemming from sexual orientation should be protected? So behaviour stemming from religion should not be protected, but that stemming from sexual orientation should. I do not understand how that is fair.

Dr. Harrisrose—

Order. I do not think that we can have another debate on amendment 217. The best way forward is for Mr. Mason to proceed.

Thank you, Lady Winterton. That is fair enough.

The position underlined by the EAT ruling on Ladele, under which religious rights come last, is not acceptable. Whichever side of the argument we are on, we should not enshrine that position in legislation as suggested in amendment 221. We should be rebalancing these matters; but I shall return to that in later amendments.

There is a theme to these amendments and the new clause around safeguarding the rights of religious-minded people. I must deal with them individually, however, because they all come from  different angles. If the hon. Member for Oxford, West and Abingdon will bear with me, I shall deal first with the amendment and new clause tabled by the hon. Member for Glasgow, East.

Given that the hon. Gentleman’s amendment is to clause 13, his intention, as I think that he stated, is to make placing tighter restrictions on religious expression than on non-religious expression a form of direct discrimination. However, that is not possible, because direct discrimination, as defined in clause 13, means treating somebody less favourably owing to a protected characteristic, such as religion or belief. It is not about religious expression, but about having the characteristic of religion or belief. I shall try to dovetail my argument into the case law that he quoted. Let us imagine that an employer has a rule against employees expressing or promoting their religion or belief in the course of their work. Someone who broke that rule and was dismissed might claim that was less favourable treatment because of their religion or belief, but if they were dismissed for inappropriate promotion of their belief, the dismissal would not be unlawful discrimination within clause 13.

I do not know enough about the Booker case mentioned by the hon. Gentleman, nor about the other case, but it sounded as though those people were disciplined for breaking their employer’s internal code of conduct. That is different from being dismissed because of one’s religion or belief.

The case of Chondol v. Liverpool city council, an employment tribunal about this issue, was upheld by the EAT, which said that the

“distinction between, on the one hand, the Appellant’s religious belief as such and, on the other, the inappropriate promotion of that belief is entirely valid in principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employer’s true reason).”

So, that is different from dismissing someone because they hold a religious belief. Clause 13 is about providing protection to someone who is treated less favourably because of their religion or belief, so the amendment does not fit into it at all, and I ask the hon. Gentleman to withdraw it.

In a sense, the hon. Gentleman could afford to withdraw the amendment anyway, because most of what he seeks to encapsulate is in his new clause 3, which is intended to guarantee freedom of personal religious expression for those who work for a public authority, where those expressions of belief remain

“consistent with requirements of law” and do not have an adverse impact on

“the interests of workplace efficiency.”

We do not think that the new clause would make any difference to the protection that is provided to people with a protected characteristic of religion or belief.

I have said this a number of times today, but I had better say it every time the hon. Gentleman alleges these things: we do not think that religious rights come last or that religion is persecuted. We do not think that religion is the poor relation or that religious expression is treated in an inappropriate way. We do not accept for a minute what seems to be his presupposition that religion is at the bottom of the pile overall.

I kind of accept that about the Government’s intentions, but does the Minister accept that some employers who perhaps do not have such a detailed knowledge of the law tend to treat religion as the poor relation?

I am not able to do an instant survey of employers to find out whether they put religion first, second, third or 57th. Anyway, what the hon. Gentleman is saying is not that, but that it is perfectly acceptable to the Government that religion should come bottom of the heap, and that that is what the Bill does, but I repudiate that lock, stock and however many smoking barrels there were in the name of the film—two I think.

I am sure the amendments are well meant, but they would not make any difference because the Bill replicates the position under current legislation and maintains a person’s right to hold and to express religious or non-religious beliefs. The measures are totally in line with article 9 of the European convention, which says that everyone has the right to freedom of thought, conscience and religion. There is no provision to prevent people from legitimately expressing their religious beliefs, whether in the context of employment by a public authority or anyone else, and we take the need to preserve the rights of religious liberty and free speech in every sector of society very seriously. Any legitimate freedom of expression will remain lawful as is required of us under article 10 of the European convention.

We are aware, as I think the hon. Gentleman is because of the nature of his new clause 3, that it is important to balance the right of freedom of religious speech with other protected characteristics. The measures are not about creating a hierarchy, but seek to strike a balance where there are potentially conflicting rights, such as between religion and belief, and sexual orientation. The provisions do contain a test of reasonableness to apply where there are issues that may be construed by some as harassment within the workplace: for instance, an atheist church cleaner offended by crucifixes on display because that is not the cleaner’s beliefs. An element of reasonableness has to be injected there, and the Bill does that, so as to balance the rights of religious expression, and the other rights.

The amendment itself acknowledges that some legitimate restriction may be imposed, perhaps on someone’s right to freedom of religious expression within the workplace. The new clause includes the proviso that the liberty has to be consistent with the requirements of law in the interests of workplace efficiency. We think that balance is already in the Bill and the right to religious expression is adequately protected. Amendment 36 to clause 13 should go, because it does not fit in that place at all. New clause 3 does not add anything and would not alleviate the concerns expressed, which I am sure we will debate again when we get to the schedules. I ask the hon. Gentleman not to press both the amendment and new clause.

Amendment 221, tabled by the hon. Member for Oxford, West and Abingdon, would have the effect of clarifying the fact that it is not unlawful to discriminate against people because of a manifestation of their religion or belief. In other words, it is not unlawful for A to discriminate against B because of a manifestation of B’s religion or belief.

Religion or belief has a wide meaning. That does not mean that each and every need of a person who has a religious belief must be catered for. The definition of religion or belief does not include manifestations of those things. That distinction is present in article 9 of the ECHR, too. So, somebody might wear particular  clothes, pray at particular times in accordance with the tenets of their religion, express views, and say or do other things reflecting beliefs. In such a case, if a person suffered a disadvantage because they had done or said something related to that, it would not constitute direct discrimination on the grounds of religion or belief under the current legislation. It is a mirroring of the hon. Member for Glasgow, East’s position—perhaps it is the same. It would be direct discrimination only if a person with different beliefs or no belief were treated more favourably in similar circumstances. That is why the EAT in the Ladele case—and courts and tribunals in other cases—was entitled to reach the conclusions it did. I think least said soonest mended about that because it is going to appeal, is it not? We do not want to comment on a live case. However, the Bill does not change the existing law, so I hope I have satisfied the hon. Gentleman that the amendment is not necessary.

I am grateful for the Minister’s response; I did not expect her to accept the amendment or even to recognise it as necessary. However, what she said was supportive, as far as it went—given her view that even though we are discussing legislation, she does not want to comment directly on a case that is going to further appeal—and I am relieved to hear that.

I want briefly to respond to a couple of points made by the hon. Member for Glasgow, East, because it is important to clarify that I, for one, do not believe that religion is—or should be—a poor relation. Nor is it a form of discrimination that dare not speak its name. Those sorts of cases are all over the Daily Mail. I am not seeking to damn him, by association, or the Daily Mail. Indeed, I am pleased to see that religious claimants are well resourced to bring cases through the Christian Legal Centre—that is their right. I just want us to be clear in advance so that employers are not dragged into the courts or scared of fighting a case.

I am clear that, if there is outrageous behaviour—I do not think that Islington council was found guilty of this—against someone on the basis of their religion, that is harassment in employment and is rightly covered. I have not tabled amendments to weaken the harassment provisions, although I have some sympathy with the proposal of the hon. Member for Glasgow, East to change “or” to “and” in clause 24. I do not think that the fact that one cannot bring a claim of direct discrimination on the basis of a manifestation of religion means that employers are at liberty to treat people badly on the basis of their religious views. In fact, quite the opposite—and rightly so, in my opinion.

On the issue of a hierarchy, it is generally not the case that gay employers or indeed colleagues give religious people a hard time. There is not that sort of problem with religion being put upon by the other strands. It is just a question of recognising that sometimes there is tension. The way the Minister put it is right, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 219, in clause 13, page 9, leave out lines 21 and 22 and insert—

‘(6) It does not matter if the protected characteristic that B has is also shared by A.’.

This is to probe why the provision in Clause 13(6) which applies to religion and belief does not in fact apply to other strands.

With this it will be convenient to discuss amendment 218, in clause 13, page 9, line 22, at end insert—

‘(6A) If the protected characteristic is sexual orientation it does not matter whether the sexual orientation is also A’s.’.

This is to probe why the provision in Clause 13(6) which applies to religion and belief does not in fact apply to other strands.

The two amendments are probing, self-explanatory and explained by the Member’s explanatory statements. I could go into the history of where the provision first appeared and then did not appear in a previous version of the regulations, but I will not seek to do so. I think that the Minister is in a position to respond to the points on the basis of the amendment as written and the Member’s explanatory statements, and I look forward to hearing her response.

It is not a defence, if a gay person, for instance, is discriminated against, to say, “It is not discrimination, because I am being myself.” There is no such defence at all. I hope that that is sufficient for the hon. Gentleman’s purposes.

I would be grateful if the Minister could directly answer the question as to why the provision appears in respect of religion but is not expressed in respect of sexual orientation or indeed the other strands. I think that she is saying that the same applies to all the others, even though it is not written. If she is saying that, that is useful. I would be grateful if she could confirm that and explain whether there is a reason why that is not included. As I have admitted, I am not going to press the amendment, but it was proposed in the spirit of wanting to hear whether there is a reason why religion and belief is picked out in the way it is.

The provision is not new. Clause 13(6) is there because there are religions with different sections and different kinds of adherence to the religion. Judaism and Islam, for instance, encompass a range of views from orthodox to liberal and moderate. The extremes in differences in outlook and lifestyle are considerable within those religions, with the attendant potential for discrimination by some of the followers of another sector. That is why there is a separate provision for religion.

I can reassure the hon. Gentleman that the interest groups that he talks to regularly, apart from that sector, are not aware of any potential for difficulty in other strands. Even if they were, the Bill protects that situation. That is why the religion provision is different from the others. As a woman, it is no defence say, “There cannot be discrimination against another woman.” In fact, if I have discriminated against her, it is discrimination—end of.

The Minister is being helpful and I recognise the historic basis. She will recall that, in the draft employment discrimination regulations, nothing was said, and then in another proposed measure there was a provision that was the opposite to clause 13(5). I think that it was changed to ensure that clause 13(5) exists as  it is. I merely note in passing that earlier she quite rightly warned us that, if something is explicit on one ground, there is the danger—albeit without the helpful explanation she gave of her view—that it would be deemed not to apply to the other grounds, simply on the basis of its inclusion here and their absence from the measure. I do not think I am going to get any further with my argument but I may well ask her at a later stage or in another place to reflect on whether, just for safety, it might be wise to accept a version of one of these amendments. I do not think now is the time, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.