Equality Bill – in a Public Bill Committee am 6:45 pm ar 16 Mehefin 2009.
This amendment aligns the legitimate aim test with one established in community law.
We come to a clause dealing with indirect discrimination. I am not sure how far we will get with it, but we will do our best to make progress while we still have time.
Amendment 153 is straightforward. It seeks to replace the test used for the legitimate aim with one that uses wording set out in community law. So, instead of
a proportionate means of achieving a legitimate aim,
we would insert
objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.
We could have a long debate about whether the two sets of words amount to the same thing. In the view of the organisations that have contacted methey feel strongly about thisnot only is it better for us to stick to the words established in community law in this area and to seize the opportunity of this new primary legislation to do so, but also, the phrase
the means of achieving that aim are appropriate and necessary
is more helpful than merely talking about proportionate means.
The term proportionality is bandied about a great deal in this place, increasingly so because it is the language of parts of the Human Rights Act 1998, and because it is an important concept. Nevertheless, in this area, where careful judgments need to be made around indirect discrimination, as we discussed earlier, it would seem helpful to our courts, and to complainants and defendantsor whatever the correct terms are in employment tribunals and county courtsfor us to use the language of community law.
It is important to include the concept of necessity, which is not obvious in the word proportionate. The language for many Community law directives talks about discrimination being necessary as well as proportionate. I do not understand why the mother legislation that we have signed up to in the treaty uses necessary, as distinct from proportionate, if proportionate includes necessary. The Government have to have an almighty justification for not doing what the amendment suggests. I look forward to hearing the Ministers response.
The point of the amendment is to change the wording from
a proportionate means of achieving a legitimate aim to the wording used in the European directive. We do not think that we should do that; it is unnecessary and our phrase is better. The phrase in paragraph (d) has been used for a long time to describe objective justification in British law and its full meaning is well understood by courts and tribunals. Means that are proportionate must be appropriate and necessary, which are the words that the hon. Member for Oxford, West and Abingdon would include. Both concepts are included in the test that we have used, but they need not be necessary in the sense of being the only possible means of achieving a legitimate aim. It is sufficient that the means are not more discriminatory than any other means that could have been chosen to achieve the same end. Since the test encapsulates what objective justification is, the words objectively justified would add nothing at all.
There is a risk that changing language well established in British law could lead to an excessive narrowing of the scope of justification beyond what the directive requires, because that change could beand necessary has beeninterpreted very strictly by our courts. However, they are obliged to interpret the legislation compatibly with the directive and they know how to do that. In a nutshell, this is well-tried and well-used language that everybody understands. The hon. Gentlemans proposal adds nothing, so we see no point in the amendment. Therefore, we respectfully invite him to withdraw it.
I think that we are going to have to agree to disagree on this, which leaves us with a stalemate. I simply disagree with the Minister when she says that it is not valuable to use objectively justified or the language of the directive in our terminology. I will reflect on what she has said about our domestic courts treatment of necessary and see what advice I receive. We may come back to this at a later stage. Since we cannot take it any further and the Minister has at least explained why she does not like it, I beg to ask leave to withdraw the amendment.
With this it will be convenient to discuss amendment 198, in clause 18, page 13, line 23, at end add
(4) If the protected characteristic is disability, nothing in the section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of the disabled persons disability..
I should say at the outset that amendment 9 is a probing amendment so I do not intend to push it to a Division. I tabled it because, reading clauses 13 and 14 together, it was not entirely clear what additional protection for disabled people clause 18 brought to the table. It may be better to have all the protected characteristics listedand clause 18 may do no harmbut I would like the Minister to set out what it brings to the table that is not covered by clauses 13 and 14. Given that we have said that clause 14 may have to be reconsidered, it might be worth having that discussion.
I will speak briefly to amendment 198, because we have dealt with this issue and the Minister has been constructive. It would make the Bill state that there could be more favourable treatment in relation to the protected characteristic of disability. However, the Minister generously offered to work with the DCC to look at the wording of clause 13 and to return on Report, and this proposal essentially covers the same argument.
Amendment 9 would remove disability from the list of protected characteristics. I know that the hon. Gentleman does not intend to do that, because it would be detrimental to disabled people and would deny them protection from indirect discrimination, as is the current situation. That is contrary to the key aim of the Bill, which is to strengthen protection where gaps exist and to streamline it. We are filling a gap by putting disability into clause 18. As we streamline the legislation , we are bringing disability into line with other protected characteristics.
As I have recently said, when we looked at the response to the Malcolm judgment, we consulted on giving protection from indirect discrimination. About half of the responses favoured that, but we were persuaded that doing so would not be enough. That is why we are introducing protection from discrimination arising from disability. We were also convinced that protection from indirect discrimination would help to prevent systemic forms of discrimination against the disabled. One can readily think of examples, such as an employer who makes a practice of requiring all management trainees to go on an Outward Bound course. That would be indirectly discriminatory towards a particular group of disabled people who work for the company. We think it is right to put disability in the clause to deal with such situations.
There is a draft EU directive that, if passed, as we think it will be, will protect people from discrimination on the grounds of disability, age, sexual orientation and religion or belief in areas beyond employment. That will cover access to goods and services and the functions of public bodies. It includes a provision that would require us to provide specific protection from indirect discrimination for all protected characteristics. That is still under negotiation, but the principle of indirect discrimination is well established and will inevitably go forward. We have included disability in the list to ensure that we give disabled people an appropriate level of protection and to meet that anticipated requirement.
Amendment 198 makes it plain that introducing protection against indirect discrimination for disability does not prevent disabled people from being treated more favourably. As the hon. Gentleman has acknowledged, we have gone over that ground. I hope that I can short-circuit the debate by saying that we agree that we must make plain the asymmetric approach towards disabled people that it is intended will be adopted under the Bill and that we will do that by redrafting clause 13. That is preferable to the adoption of amendment 198. If he is satisfied with that, I will not pick holes in the amendment.
I am grateful to the Minister for that response. I am comfortable with her suggestion on amendment 198. As I said, we have discussed that issue and she has been constructive about how she will approach that by looking at clause 13.
Amendment 9 is a probing amendment. The Minister has explained what extra benefits disabled people will have through the inclusion of that protected characteristic in clause 18. I beg to ask leave to withdraw the amendment.
This is to probe why pregnancy and maternity are omitted from the list of protected characteristics for indirect discrimination.
The amendment probes why pregnancy and maternity are omitted from the list of protected characteristics for indirect discrimination. I understand that there is an argument that by definition it would be indirect discrimination on the basis of gender, but I would argue that it probably would do no harm to have a list that is consistent throughout the Bill. Therefore, the question at least deserves an answer that is not totally dismissive. In order to help us make progress, I will leave my remarks at that point.
But the hon. Gentleman none the less answers his own question. A woman who is indirectly discriminated against because she is pregnant, or is a new mother would, by definition, be able to make a claim of indirect sex discrimination, since any provision or practice which disadvantages pregnant women or new mothers is disadvantageous to women. That is the current position and we are not aware of any difficulty, so we just go forward with the law as it is. I hope that that satisfies him.
I beg to move amendment 37, in clause 18, page 13, line 23, at end insert
(4) If the protected characteristic is religion or belief, for the purposes of subsection (1), and subject to subsection (2), a provision, criterion or practice is discriminatory if it requires persons of Bs religion or belief to act in a way which contravenes the stated doctrinal or ethical teachings of the religion or belief..
Makes clear that requiring a person to act contrary to the accepted teachings of his or her religion or belief is a form of indirect discrimination. N.B. Indirect discrimination is still permitted if it is proportionatesee Clause 18(2)(d).
Like other Members, I am happy to make my arguments brief, especially as we have already touched on some of this. I thank the Solicitor-General for her assurances that she sees religion as one of the strands and that it is not being disadvantaged. It is good to have that on the record from her previous statements and I take those reassurances at face value. The point of the amendment is the link between religious belief and behaviour. We have touched on that, both in sexual orientation behaviour and with regards to religion. I argue that it is very hard to separate the two, although I accept that to some extent there are differences.
The point of how far the state should go in regulating a religion and religious behaviour is hard to determine, but we need to get the balance right. Clearly, there are examples of the state going too far and, for those who are familiar with the Bible and Daniel and the lions den, Daniel was told not to pray in public. That was going too far: he went into the lions den, but he was saved. At the same time, I completely accept that it should not be the case that every individual just claims religion as an excuse for absolutely anything. That is why we are not saying it would be a total exemption, but we are talking about things contravening the stated doctrinal or ethical teachings of the religion or belief, which I hope protects against people just having their own, individual, very strange ideas. That is probably enough just to make the point and I accept that this is building on what we have been saying before.
I urge the Committee to reject the amendment, obviously in polite terms, in the spirit of the stage of the debate that we have reached. [Interruption.] For several reasons. [Interruption.] The hon. Member for Islington, South and Finsbury says that if I give reasons in a Public Bill Committee, that might make some Members change their minds. Well, they could do it on any basis, but it is important
I do not want the hon. Gentleman to misunderstand me, but I just want to make it clear that he may well find that he is pushing at an open door. Perhaps we could, given the hour, appeal the light and go home.
I take the hon. Ladys point, but I want to make a couple of brief points. It is not satisfactory to argue for special protection for religion while at the same time arguing that it should be treated the same in every other way. That is asking for special treatment on the basis of doctrinal and ethical teachings. In fact, religion already benefits, because political statements of view receive no protection at all under discrimination, whereas arguably quite contentious views founded on religion benefit from some protection albeit, as we know from our previous debates on direct discrimination, not as many.
If the hon. Gentleman would like to introduce an amendment suggesting that political beliefs should be protected, I would be very supportive.
The harassment provisions in employment give protection for the treatment of people manifesting their religion in a way that is not available for people who are manifesting their political, aesthetic or cultural opinions. Religion and, indeed, philosophical beliefit is not exclusive to religionis already given status. The hon. Gentleman need not worry that it is being treated like anything else. The fact that it is often in scripture or ethical teachings is, rightly or wrongly, acknowledged in the law. We should be careful; Scientology would be covered by his proposal, as would a whole series of other religions, sects and cults. The hon. Gentleman needs to be careful in what he is asking us to endorse. Secondly, his explanatory statement says:
Indirect discrimination is still permitted if it is proportionate under the test which we have already discussed, however it is framed, of clause 18(2)(d).
Again, we have the same problem, as the hon. Gentleman cannot have it both ways. If the proposal means anythingand the requirement that the amendment should be subject to clause 18(2) is the relevant issueit does not add any additional protection and should not be accepted because it makes no difference. If it is his intention that subsection (2) should be diluted in some way, in respect of something that just happens to be
stated doctrinal or ethical teachings then for the reasons I have given, I urge the Committee to oppose the amendment.
I imagine what the hon. Member for Glasgow, East is looking for is legitimisation or conscientious objection, but the hon. Member for Oxford, West and Abingdon has put his finger on the point that clause 18 allows justification for something like that in some circumstances.
What the hon. Member for Glasgow, East seeks to say is that a provision, criterion or practice is discriminatory if it requires somebody of a religion or belief to act in a way that contravenes the stated doctrinal or ethical teachings of the religion or belief. From the point of view of protecting the religious, we do not think that that is necessary. It would be potentially unlawful under the Bill for a provision, criterion or practice to require an orthodox Jew to work on a Saturday, for example. The question would be whether such a requirement could be justified under clause 18(2)(d) in particular circumstances.
Specifying that one form of behaviour which is clearly covered by the definition is to be regarded as indirectly discriminatory is an odd thing to do, because it is already covered. As we rehearsed on an earlier provision, it may raise questions about others and it might be unclear whether a provision would be regarded as indirectly discriminatory if it contravened beliefs which are not doctrinally or ethically linked to a religion, but which are nevertheless commonly held. I think the hon. Gentleman is familiar with that argument. Putting it in a nutshell, this would muddy the waters, and it would not give any enhanced protection to the religious. The best way to deal with it is to put in the unamended definition of indirect discrimination, make it applicable to religion or belief as we do already, and that is that.