Clause 24

Equality Bill – in a Public Bill Committee am 9:30 am ar 18 Mehefin 2009.

Danfonwch hysbysiad imi am ddadleuon fel hyn


Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 230, in clause 24, page 17, line 26, at beginning insert, ‘Subject to subsections (2A), (2B), (2C) and (2D),’.

Photo of Joe Benton Joe Benton Llafur, Bootle

With this it will be convenient to discuss the following: amendment 38, in clause 24, page 17, line 27, leave out ‘or’ and insert ‘and’.

Raises the threshold in the definition of harassment in order to mirror the wording of EU Directive 2000/78/EC, Article 2.3.

Amendment 231, in clause 24, page 17, line 29, at end insert—

‘(2A) Subject to subsection (2D) where the protected characteristic is sexual orientation, for the purposes of Part 3 (Services and Public Functions), the purpose or effect is—

(a) violating B’s dignity; and

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2B) Where the protected characteristic is sexual orientation or gender re-assignment, for the purposes of Part 6 (Education), the purpose or effect is—

(a) violating B’s dignity; and

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(2C) Subject to subsection (2D) where the relevant characteristic is religion or belief, for the purposes of Part 3 and Part 6, the purpose or effect is—

(a) violating B’s dignity; and

(b) creating an intimidating, hostile, degrading or humiliating environment for B.

(2D) Subsection (2A) and (2C) apply to Part 3 (Services and Public Functions) only where the provision of a service is—

(a) carried out by a public authority,

(b) carried out on behalf of a public authority,

(c) carried out under contract to a public authority, or

(d) otherwise carried out in the exercise of a public function.’.

This amendment extends protection against harassment on grounds of sexual orientation, gender reassignment and religion or belief in relation to part 3 (where exercising a public function) and part 6. Harassment is defined in a more limited way.

Clause stand part.

Photo of Evan Harris Evan Harris Shadow Science Minister

I think that amendment 232 to clause 27 is consequential on the amendments that I and my hon. Friend the Member for Hornsey and Wood Green have tabled. I am happy to deal with it now rather than on clause 27, if that is convenient, although obviously you would need to agree to that, Mr. Benton. However, if I deal with it appropriately now, I will not need to speak to it later.

There is a threefold purpose to my amendments. The first is to extend the protection from harassment in law to captive populations—people who cannot escape harassment, and vulnerable people in particular. That could include people in the education system—pupils at school, for example—or users of public services who, given the nature of those services, might be vulnerable. They might rely on those public services and they should not have to suffer harassment while accessing them.

The clause provides protection from harassment to all the strands except two; I will come to that during the clause stand part debate. However, other parts of the Bill specifically exclude discrimination on the grounds of sexual orientation, religion and belief, and gender reassignment—to use the Government’s term—in certain areas.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

For the information of the Committee, will the hon. Gentleman clarify whether the definition of public services that he has in mind regarding captive audiences and groups includes prisoners? There are concerns about harassment and discrimination among certain groups of sensitive prisoners.

Photo of Evan Harris Evan Harris Shadow Science Minister

Indeed. Clearly, imprisoning people as part of the criminal justice system is a public service. It is a public function, even if it is delivered by the private sector under contract. There has never been any argument about that and human rights laws apply. If we are identifying a distinction between the general delivery of services and public services, as I urge the Committee to do, and saying that there should be greater protection where people are receiving public services, that point applies.

Let us deal first with education. In education, there is no protection from harassment on the grounds of sexual orientation, gender reassignment and religion or belief. I understand that in respect of gender reassignment that exclusion exists only in education. There is protection from harassment on the grounds of gender reassignment in the provision of services, but not in education. It is amazing that education should be singled out as the one place where young people, who are likely to be in education, are not protected against harassment on the grounds of gender reassignment as defined in the Bill.

Harassment in those circumstances means violating the dignity of someone on the grounds of gender reassignment. That might involve someone who is on the journey towards gender reassignment, for example, or even before that, if the House accepts the definition of gender reassignment proposed by the Liberal Democrats. Under my amendment, harassment would also include the creation of an

“intimidating, hostile, degrading, humiliating or offensive environment for B.”

I do not see how it can be considered acceptable for any school to be allowed to get away with that happening to a vulnerable pupil.

I understand that gross cases of harassment might be dealt with by direct discrimination legislation, but we need a protection that applies to cases that fall short of that, just as other strands are protected. It is not good enough to say that it is okay because if someone is picked on in a specific way by a teacher, for example, that passes the threshold for direct discrimination. On that basis, why have any harassment provisions in schools when direct discrimination provisions already apply in the worst cases?

On sexual orientation, the evidence that harassment exists in schools is even stronger. That is why the omission of some form of protection concerning sexual orientation is a concern. I accept that issue has been controversial for a while, and I have not always argued as strongly as I do now that we need protection on the grounds of sexual orientation in harassment provisions generally. Indeed, my party and I were supportive when the sexual orientation regulations provided not to do that—when such matters were dealt with by regulation.

Part of that was, first, a concern that free speech might be inhibited in the general provision of services and, secondly, that primary legislation was needed to delve into whether the definition of harassment would be so strict that it fell on the wrong the side of the balance, restricting freedom of speech—chilling freedom of speech—and making some speech unlawful, which would have been disproportionate to what we wanted to do.

The case has been made that there is a problem in respect of the amount of homophobic bullying that is known to take place in schools. Many schools are failing even to develop policies specific to homophobic bullying. In other words, they are not doing what they need to do to start to tackle the problem. It is unacceptable in such circumstances for there to be no legal protection against harassment on the grounds of sexual orientation. That would focus the minds of governing bodies of schools, whether faith or other schools, on the fact that they have a legal obligation to protect vulnerable pupils and that the creation of an environment that is intimidating, hostile, degrading, humiliating or offensive is not acceptable.

I am sure that the Government agree that such a thing is not acceptable. The religious witnesses at the oral evidence sessions also agreed that they would not want to see it, but for some reason they thought that the law should not apply. That is an unsustainable position. If the problem is serious enough to say that it should not happen and there is evidence that it does happen—there is no doubt about that—there is no reason to provide a legal exclusion on such grounds.

I hope that the Government do not share the view that such a thing is unacceptable but that it does not have to be provided for in law. In respect of sexual orientation protection in schools, we believe that the case is at its strongest.

Arguably, there ought to be protection from harassment on the grounds of sexual orientation in the delivery of public services. It seems wrong that people receiving public services, which are often their right—there is sometimes only one provider available—should have to suffer harassment without recourse to law. The providers,  because there is no legal obligation, do not prioritise the need to educate their work force that harassment ought not to take place, however strong the views about the morality of sexual orientation or other matters.

It is not good enough to rely on the argument that there may be a variety of service providers available. In the case of discrimination on the grounds of race, we did not argue that one was entitled to have a whites-only bus on the basis that there was a bus with mixed passengers following just behind and that that was all right for the lady in the United States who objected. The Government quite rightly used that argument—I remember Ministers doing so, and I applauded them—when people sought an exemption from the injunction not to discriminate on the grounds of sexual orientation when providing adoption services to lesbian and gay people. Catholic adoption agencies argued, for example, that there would be other providers that lesbian and gay parents could go to. That is not an acceptable way to deal with unjustified discrimination, saying, “Oh, we can, because there is another organisation down the road.” Sometimes a school or a service provider is the only service provider in the village—to paraphrase a comedian in relation to sexual orientation. Therefore, people in receipt of public services have a right not to be harassed.

In those areas there is a clear argument for having the protection. The question then moves on—in this matter, I shall deal with the amendment standing in the name of the hon. Member for Glasgow, East—to the conjunctive versus the disjunctive version of clause 24(2). The wording is that the “purpose or effect” referred to in subsection (1)

“is... violating B’s dignity, or... creating an intimidating, hostile, degrading, humiliating or offensive environment for B.”

The original directive uses not the disjunctive “or”, but the conjunctive “and”. The hon. Gentleman highlights that in his amendment, but it would be difficult to change that protection, which is clearly a higher protection, because it is easier to qualify for an either/or definition than to satisfy both limbs. The principle of regression probably means that it is not possible for us to go back and undo protection against harassment on existing grounds.

Whatever the merits of that argument, my proposal would not do that, but I recognise that there is an argument for a slightly narrower definition which is based on the need to have respect for freedom of speech and the idea that too low a threshold for harassment claims might intrude on freedom of expression. Clearly, the conjunctive version will be narrower, because behaviour would have to have the purpose or effect of violating the dignity of someone to whom it was directed and creating an environment that was

“intimidating, hostile, degrading, humiliating or offensive”.

Our proposal for harassment protection on the grounds of sexual orientation and gender reassignment uses that version. People will argue that it is a lesser protection than currently. They might argue that a one-off occurrence of harassment is difficult to fulfil the limb, which would be required with an “and”, that it creates an environment—it is hard to create an environment with a one-off action.  If the one-off action were sufficiently serious, it might well be caught by provisions on direct discrimination; if it were not so serious, it would be reasonable to take a “two or three strikes and you’re out” approach, as currently exists in harassment law regarding the actions of third parties for which employers have some responsibility. That is a reasonable balance.

I looked carefully at whether creating an offensive environment—that is the easiest of the environments to create—on the ground of sexual orientation even when that is not intended goes too far, but I cannot think of any scenario, even in the teaching of religious education, in which it is acceptable to create an offensive environment. There is no need to do so. If a teacher of religious education needs to say that some religions believe that homosexuality is sinful or worse, they can do so, but that does not create an offensive environment unless they actually say, “Homosexuality is sinful.” It is not appropriate for school teachers to tell people that their lawful behaviour or that of their parents is sinful and stands to be condemned. Describing what other people think would not fulfil those grounds, but if people feel that it would create too great a constraint, we would be willing to consider the matter, because it is important to have some protection.

The same provisions apply in principle to religion and belief: there needs to be protection for people against harassment on the grounds of their religion or belief in schools or when they are in receipt of public services. Exactly the same arguments that I made in respect of sexual orientation apply. Other forms of the law—there is cross-party support for this—recognise that it is difficult to avoid causing offence on the ground of religion based on the religious sensitivities of B. Often, one religion’s theology is offensive to another’s by definition. I make no criticism of that because it is the way of such things. It is probably also true of politics, although that is not covered. It is therefore reasonable to have a significantly narrower definition of harassment to ensure that the usual conduct of religious behaviour is not caught.

It is therefore reasonable to argue that there should be protection from harassment on the grounds of religion and belief on a conjunctive definition that omits the term “offensive” with regard to environment. No matter how sensitive or thin-skinned someone is—I do not use that term pejoratively—I do not believe that it is appropriate in education and in the delivery of public services to create an

“intimidating, hostile, degrading...or...humiliating...environment”.

So even if someone does not find something such as a poster offensive, I do not see how we can defend not outlawing the creation of an environment with the characteristics I just described. Therefore, the amendments that stand in my name, which are my best attempt to construct such an argument in the frame of an amendment, rather than a new clause, seek to strike the right balance between extending protection and preserving free expression.

I have not read into the record the examples of homophobic bullying that exist in schools, sent from organisations such as Schools Out, Stonewall and OutRage!. However, I am sure that hon. Members are aware of them, and do not need me to do that here. None the less, I want to pay tribute to those organisations for their  long-standing work, in partnership with parliamentarians of all parties in this House over many years, to highlight the problems.

Turning to the clause stand part, the issue with the test in subsection (3) is interesting. The question is whether it is sufficiently objective for the purposes of the existing protection, and whether it is sufficiently objective to provide enough protection for the freedom of expression and behaviour, where we seek, as I do, to extend protection from harassment to new grounds. I will be grateful—this is the reason I am flagging it up—if the Minister gives us the benefit of her views, based on her experience and insight, regarding how objective she believes the test is.

The wording of the subsection is:

“In deciding whether conduct has that effect,”— the effect that I have described, in the currently disjunctive definition in subsection (2)—

“each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case;

(c) whether it is reasonable for the conduct to have that effect.”

The question is whether paragraph (c) is a stand-alone issue for the courts to decide, or whether it still relates to the perception of B. It is important not to argue that it is regression, but I hope that the Government will agree with the following: separating out the perceptions of B and A and seeing whether it is reasonable for the conduct to have that effect would create a more objective test, so that someone outside may ask, “Is it reasonable that that behaviour creates the environment without having as much reliance on the perception of B as would exist if that was all in the same paragraph?”. In other words, it asks whether it is reasonable for the conduct to have that effect by taking into account the perception of B and all the circumstances, or whether that is the case by taking into account all the circumstances of the case, including, in particular, the perception of B. It strikes me that that is a slightly more objective test. I hope that that is the case, because there needs to be some objectivity here.

We know what we are trying to get at. Pictures of pin-ups in workplaces clearly create the environment that is talked about, and indeed may violate the dignity of a woman. It is not a question of subjective perception or the need to be particularly sensitive, even if there were a woman in the workplace who did not find that offensive—that is a reasonable, objective test to be made. I am not arguing that that is regressive in any way, but I hope the Minister will agree that it clarifies that the test of reasonableness does not relate to the perception of B, but is, in a sense, a stand-alone issue.

The other point that I want to raise on clause stand part is the exclusion of marriage, civil partnership, pregnancy and maternity from the list of protected characteristics. The missing characteristics raise the question why there is no coverage at all, even in existing protected environments such as the workplace, where we know this sort of harassment currently exists. I believe that the Minister has been asked about the matter by the Joint Committee on Human Rights, among others. It would be useful if she could explain why the list of protected characteristics in subsection (5) does not extend to those two areas.

Without giving examples of the sort of mischief that I am trying to cover, I hope that I have made a very strong case for the extension of harassment protection on the grounds of sexual orientation to schools and the provision of public services, on the grounds of gender reassignment to schools and on religious grounds, on a narrower definition, to schooling and provision of public services. This is a controversial matter. After the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, which included a harassment provision, were introduced by the Government, as a take-it-or-leave-it measure, they were challenged in judicial review in Northern Ireland. The court rightly upheld the regulations in general, and the only part that did not survive the challenge—rightly so, in my view—was the harassment provision. That was based mainly on a lack of consultation, but the judge also referred to concerns by the Joint Committee on Human Rights.

That does not mean, however, that there should never be any protection from harassment. The Government did not get it quite right in the 2006 regulations, and were wise not to put them in the Great Britain regulations, because by their nature they were unamendable. The Bill gives us an opportunity to deal with this matter in a considered way, and I hope that the Government will view my probing amendment—it would not be appropriate to divide on it—as a way in which to open this debate, so that we can hear either the Government’s justification or their willingness to consider the matter further.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury 9:45, 18 Mehefin 2009

In the past 12 years, huge changes have been made to equality legislation, and the gay and lesbian community is now on the verge of absolute equality under the law. However, much remains to be done. Clearly, one of the most important areas on which people quite rightly focus is the way in which young gay and lesbian people are treated at school. The extent of homophobic bullying is frightening, and anything that we can do to stamp it out is incredibly important. I also seek clarification from my hon. and learned Friend on whether the legislation, as proposed, is sufficient to do everything possible to ensure that young and vulnerable people, who are just finding themselves, are not subjected to bullying.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I shall speak, in particular, to amendment 38, although I shall refer to comments made already. Once again, I am speaking in a personal capacity, rather than on behalf of my party.

I tabled amendment 38 primarily to probe why the definition of harassment adopted in the UK is wider than that found in the relevant EU directive. The test for harassment in the Bill, and in previous legislation, including the 2003 employment equality regulations, has two alternative limbs: the unwanted conduct has the “purpose or effect” of violating the victim’s dignity or of

“creating an intimidating, hostile, degrading, humiliating or offensive environment” for him.

That definition first appeared in the Employment Equality (Sexual Orientation) (Amendment) Regulations 2003 and the Employment Equality (Religion or Belief)  Regulations 2003. Those regulations implemented EU directive 2000/78/EC. Article 2.3 of that directive defines harassment in these terms:

“Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds ... takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States.”

There is a difference here. Instead of violating dignity or creating a hostile environment being alternatives, in the directive they are cumulative. To prove harassment under the EU definition, it must be shown that the conduct violated dignity and created an offensive environment, which is clearly a higher test.

I do not claim to be an expert in this area, but I am curious about whether the Solicitor-General can explain why, in implementing the 2000 directive, the wording was altered in this important way. It is important, because it is obviously easier to prove harassment under the UK test than under the EU test. For example, if I cannot persuade an employment tribunal that someone violated my dignity, I might still be able to persuade it that the person created an offensive environment. In other words, under the UK test I get two bites at the cherry, whereas the EU test would require me to prove not one but both limbs before my claim would succeed.

I do not underestimate the importance of tackling harassment in the workplace or anywhere else. On Tuesday, we considered the Ladele case, in which it was clear that the Christian woman involved was poorly treated by her employers and, at the first instance, the tribunal made a finding of harassment.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury 10:00, 18 Mehefin 2009

That person was a registrar in my constituency, where a large number of gay weddings, as we call them, take place. Every day, many gay couples leave the town hall, finally having been allowed to have some sort of union. This woman decided that, despite the background in my constituency, her religious beliefs were more important than those of the people whom it was her job to marry, by registering their union. She put that above her employment obligations and, quite rightly, her case was turned down on appeal—and so it should have been, because she was employed to do a job and she should have just done it. If she did not like it, she should have got another job.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I thank the hon. Lady for her heartfelt intervention, but is there not room in a diverse community—especially one like her constituency—to allow a place both for gay marriages and for people’s individual consciences? Can we not have a society where both those things live together?

Photo of Diane Abbott Diane Abbott Llafur, Hackney North and Stoke Newington

I do not want to prolong this argument, but the hon. Gentleman has asked the Committee a question and I should like to answer it. I am familiar with the part of London where this took place and  familiar with the community from which that registrar came. I am clear that some people use their religion as a vehicle for cultural bigotry, clearly and simply. Precisely because I know those communities well, it is important to draw a line and say, “You cannot use your religion to allow your bigotry to affect how you carry out your duty to the public.” If we do not draw the line, bigotry will encroach ever more on the delivery of public services. Parliament has to take a stand against that.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I thank the hon. Lady for her heartfelt intervention. We are clearly dealing with a difficult area. If one thing comes out of this Committee’s consideration of the Bill, I hope it is that the Government will realise that we are in a difficult area. That does not mean that we should not talk about this matter, but the Government need to be wary of trying to restrict religious belief and practice too much.

I totally agree that we should come down on bigotry, but the problem is defining it, because one person’s bigotry is another person’s belief. Sadly, it appears that, in society, and perhaps in this Committee as well, it is okay to call religious people bigoted, but it is not okay to call other people bigoted.

Photo of Sandra Osborne Sandra Osborne Llafur, Ayr, Carrick and Cumnock

The hon. Gentleman represents the Scottish National party on this Committee and I am beginning to wonder when we will get the SNP view of the situation. He implies that we should be weaker and should comply with the EU situation, rather than have stronger provision for this country. Why is he suggesting that?

Photo of John Mason John Mason Scottish National Party, Glasgow East

I am suggesting that the EU has set a reasonable standard. There is a danger that we will either catch out too few or too many people under the provisions on harassment. It is for the Government, this Committee and the wider House to judge and decide where they want that line to be. All I am trying to do is to point out that there are two different standards, and some people feel that they are being too easily caught out on the grounds of harassment.

To return to the previous point, can we allow a person any room at all for conscience? We do so on the issue of abortion. It is argued that the registrar should not have the job if she will not perform all the functions of her organisation, but by the same logic, every nurse and doctor in this country must carry out abortions. However, we have decided to allow a bit of freedom for conscience. It seems to me that we and the authority are surely big enough to do the same in this case.

Photo of Evan Harris Evan Harris Shadow Science Minister

I have several points to make, although we are straying somewhat off the topic of harassment. First, that exemption, which I support, does not permit discriminatory behaviour. It involves provision of a service and falls short of discrimination, although some people might feel that they must go further. It does not involve picking on people; it involves a procedure.

Secondly, on the Ladele case, it is only fair to say that what she wanted to do was discriminate, which is why the employment tribunal found against her. It is also right to say that the Employment Appeal Tribunal did not uphold the findings of harassment. It needs to be recognised that not every sentence and every letter was written as well as it might have been, but in the end, the council was cleared of that charge. That is important.

Thirdly, it is not illegal to be bigoted on any grounds, because that is included in freedom of belief, but what we try to do is constrain that when it affects other people, particularly in the workplace. That is why I think that there is a particular responsibility to protect people from being discriminated against in the workplace. One does not need to discuss whether it is cultural bigotry or not—I am sure that the beliefs are sincerely held—but there must be some protection for the victims of that belief, if I can put it that way.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Yes, and I see Ladele as the victim in that situation. She might not be the only victim, but I certainly see her as one.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

Does the hon. Gentleman not agree at least that the major test in terms of the service users—in that case, the gay couple who wished to recognise and celebrate their relationship in a civil partnership—is whether they are able to use the service? If the registrar is the only registrar in a local authority area and such a couple are unable to discharge their wishes because there is no other person who can fulfil them, that perhaps makes the case significantly different from whatever reservations of conscience an individual registrar might have.

Photo of John Mason John Mason Scottish National Party, Glasgow East

As I see it, a health service must provide abortions and a local authority must provide registration of civil partnerships. The organisation must provide all those services, but I do not see that it automatically follows that every individual in that organisation must provide every service.

Several hon. Membersrose

Photo of John Mason John Mason Scottish National Party, Glasgow East

I am happy to give way, but I realise that you do not want to spend all day on this matter, Mr. Benton.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families), Liberal Democrat Spokeperson (Children, Schools and Families)

This is a difficult area, and we are trying to get the balance right, but as discrimination law has advanced so far as to bring into play factors that did not exist before, it is important that we get it right. That extends to a whole range of issues. There might be people who do not wish to police a gay march, or firemen who will not attend certain incidents. On the execution of public duty, it is important that we make it clear here and now that carrying out public services cannot be a matter of conscience in the way that the hon. Gentleman might wish. That is not signalling against a genuinely held conviction or people’s conscience; it is a necessity in the modern age. People with such convictions might ultimately make different choices about their careers.

Photo of John Mason John Mason Scottish National Party, Glasgow East

The logical extension of that is that anyone with a conscience on certain issues, whether religious or otherwise, will be squeezed out of public services. Anyone with a serious problem of conscience will no longer be able to work at a state school or a public hospital. Surely we want a more diverse and inclusive society than that.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

Perhaps the hon. Gentleman will accept the argument in these terms: a registrar’s duty is to ratify a contract that is justified in law passed by Parliament. Parliament passed a law allowing civil union between gay couples, so it is her job to ratify that contract. If she does not like the law, she has to get another job—she has to move out and do something else.

Photo of Joe Benton Joe Benton Llafur, Bootle

Order. Before the hon. Gentleman replies, let me say that we are in danger—we are not quite there yet—of discussing the merits of the case concerning the registrar, which is not part of the amendment. It is fair enough to use examples, and I have no objection to that, but I do not want the debate to be any more personalised. We are moving in that direction—I can sense it coming—so I want to add a cautionary note that we must not personalise these issues by referring to a specific case. We should keep to the merits or demerits of amendment 38.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Thank you very much for that guidance, Mr. Benton.

Let me try to finish the point. I take the point about the legal duty, but I see the legal duty to provide the service as being primarily on the local authority. We will touch on schools later, and there are similar facets there. As I see it, however, every individual in the authority does not necessarily have to carry out every duty, and that is clearly the case, because some people do one job, while others do another job. If the authority had only one registrar, there would be more of a problem—sorry, I should not have mentioned the registrar. However, if lots of people do the same job, it is possible for them not to carry out every duty.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the hon. Gentleman for giving way, because there are a couple of important points. If the local authority’s charter says that its employees will not discriminate on grounds of race, sexual orientation or whatever in the delivery of services, the authority has to be able to live up to that charter without employees saying that they want to opt out without any come-back.

Through the hon. Gentleman, I would also like to say to the hon. Member for Daventry, for whom I have huge respect and genuine affection, that it is not acceptable to say that everything is all right as long as someone else fulfils the duty. Someone may have sincerely held beliefs that mixed-race marriage is wrong, and one could respect those beliefs by saying, “All right, you don’t have to do the marriage, because no one else has those views.” However, it would still be wrong for a public authority to give credibility—

Photo of Evan Harris Evan Harris Shadow Science Minister

I am intervening on the hon. Member for Glasgow, East, so the hon. Lady will have to intervene on him. It would still be wrong for a public authority to give credibility to a prejudice, because that would give it the green light. Even if some forms of discrimination are sincerely held beliefs, we should not allow them to be exercised.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I must make some progress or I will get in trouble with the Government Whip.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

If I undertake not to interrupt the hon. Gentleman again, may I just make one last point? A high number of marriages end in divorce, and a registrar might have firmly held beliefs that someone should not enter into a second marriage after they have been divorced. If they began to discriminate on that basis—even if they were one of five—and other registrars held that view, a large number of people in my constituency would be unable to get married.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Even most religious people would accept that marriage is perfectly acceptable after a divorce, so that is a bit of a red herring.

Photo of Tim Boswell Tim Boswell Ceidwadwyr, Daventry

In the spirit of the last two interventions, will the hon. Gentleman at least concede that, in a sense, we are not pursuing absolutes in this matter, whatever people’s consciences are? There will be some quite proper reservations about the employment in a public job of persons who, for example, support a minority or extremist party, and that is defensible in certain conditions. My concern is that people should have the widest possible freedom to exercise their conscience as long as, and to the extent to which, it is consistent with the discharge of the public authority’s duties and its provision of public services. That is a difficult balance to find, but it is not an absolute one.

Photo of John Mason John Mason Scottish National Party, Glasgow East 10:15, 18 Mehefin 2009

The word “balance” is one that I like. I hope that the Solicitor-General will take the points made on board. This is an incredibly difficult area. I had better move on.

The reason for asking the Solicitor-General to explain the position is the concern in some circles that specific laws against harassment, especially if they are widely drawn, may create a risk to free speech. I presume that there is a risk that someone could claim that mere disagreement with them over an issue related to a protected characteristic had created an offensive environment or made them feel violated. However, those are subjective terms.

The law on harassment is controversial. In 2005, the Government considered introducing harassment on the grounds of religion in the provision of goods and services. Since then, they have undertaken a discrimination law review and they concluded that the Bill should not introduce harassment on the grounds of religion or sexual orientation in the provision of goods and services. Indeed, clause 27(8) specifically excludes those grounds. I assume that the Government saw that introducing the right to sue for offending feelings while receiving goods or services had the potential to unleash a wave of litigation.

Harassment has a more limited application in the provisions of goods and services, but on employment it applies to all strands. One obviously has less choice in the working environment than in the marketplace. For example, if one does not like the atmosphere in one shop, one can go to another; but it is much harder to switch if one does not like the atmosphere at work. If we are to have a harassment law on all grounds for  employment, and if we are to apply it also to the provision of goods and services and some other grounds, we must be careful about the threshold in order to prevent misuse. The definition of harassment is already set about with limitations. The question is not whether we have limitations, but what they should be. Why is it necessary for us to go further than the EU?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

I intervene to deal with the hon. Gentleman’s point while he is still on his feet. He is right that the EU test is narrower than ours. He said that our wider test, as he characterises it, has been in our law since 2003, although we think that it has been in our law since 2000. We would break the principle of non-regression if we narrowed it to the EU test. Does he have an answer other than that which is prohibited?

Photo of John Mason John Mason Scottish National Party, Glasgow East

I raise these points for discussion. If it is impossible to wind things back, I must accept it. However, I am grateful for the clarification provided by the Solicitor-General, although perhaps she is not aware of why, in 2000 or 2003, a different definition was brought in.

Finally, and I hope briefly, I touch on the amendments tabled by the hon. Member who represents Abingdon—I wish to save time by not saying the full name of his constituency, or will that upset the people of west Oxfordshire? I wish to speak to amendments 230 and 231—and possibly 232 and 233, which are related. They seek to extend the harassment provisions to cover religion and sexual orientation in the provision of public services. I am naturally interested to see that the definition uses the “and” formulation of my amendment rather than the “or” formulation used by the Government. However, given what I have said, I obviously oppose extending the Bill to cover harassment on those grounds.

I shall touch on some of what the hon. Gentleman said. He mentioned the question of schools, and specifically mentioned homophobic bullying. I am sure that we are unanimous in agreeing that such behaviour should not happen. I know that schools—both faith schools and other kinds—are desperately trying to tackle bullying of all kinds, and I fully support them in that. I understand that faith schools in England and Scotland want to teach, for example, that sex outside marriage is wrong; indeed, that forms part of the ethos of such schools. However, we do not want such a statement to be thought of as bullying. For example, in Glasgow every child lives in the catchment areas of two schools, so every family and every child can choose between a faith school and a secular one.

Photo of Emily Thornberry Emily Thornberry Llafur, Islington South and Finsbury

What, therefore, would happen to a young man whose Catholic parents want him to go to a particular school, but who, at the age of 13 or 14, decides that he is gay, and finds himself bullied by teachers who tell him that there is something profoundly wrong with him because he wants sex outside marriage?

Photo of John Mason John Mason Scottish National Party, Glasgow East

There is a difference between making a statement such as, “I believe it is wrong to have sex outside marriage,” and bullying. The two are not the same. I hope—I certainly have faith in Glasgow schools of all descriptions—that schools are attempting to tackle bullying at all levels, but that is not to say that they accept all forms of behaviour as just being okay.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman is saying that there are some schools—state schools, state-funded schools—providing that public service that want to teach that gay sex is always wrong. They can cover it on the basis of sex outside marriage but, as the hon. Member for Islington, South and Finsbury said, that means that gay sex is always wrong, always sinful and something to be condemned, to put it mildly. I cannot believe that this Committee, this House—certainly this applies to my party—and the Government think that that is acceptable. A school must not do that. A school can say that certain organisations or religions believe that, but it has a terrible effect on young people who are gay, lesbian, bisexual and so on.

The evidence, which I have not read out, although I could, shows that the feeling that one is being bullied and instances of bullying are a particular problem in faith schools, precisely for the reasons that the hon. Gentleman gives. It is not right for him to hide behind the argument that their ethos says that sex outside marriage is wrong. That means that being gay is always wrong if people express it sexually, which every gay person is entitled to do within the law.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Our policy—this is our party policy, for the benefit of the hon. Member for Ayr, Carrick and Cumnock—is that if sufficient parents want a particular type of school, be it religious, non-religious or whatever, we would aim to provide that type of school. It could be Catholic or we could be talking about other Christian denominations. We have at least one Jewish school in Scotland and we are looking at Muslim schools in Scotland as well. Those would be schools run by the public sector.

I believe in diversity. If there is one thing that I am trying to get across in Committee, it is the idea of diversity, of live and let live, of being inclusive and of allowing different views. We do not have to have all schools saying that marriage is unnecessary or not particularly a good thing. We can have some schools saying that marriage is a good thing. We can have other schools taking a more relaxed view about the issue. Parents would have a certain amount of choice about which one they wanted their child to go to.

To take another example, is it unrealistic to imagine that someone could walk into a parish church or faith school on polling day, cast their vote and then claim to have been religiously harassed while in receipt of public services because of the presence of a cross or Bible  verses on the walls? The amendment is dabbling in dangerous territory, and the Government have taken the wise course and left that alone.

The hon. Member for Oxford, West and Abingdon seems to be treating religion or belief less favourably than other characteristics. His harassment test for sexual orientation and for gender reassignment in his proposed new subsections (2A) and (2B) in amendment 231 is an

“intimidating, hostile, degrading, humiliating or offensive” environment, but for religion in subsection (2C), the test is

“intimidating, hostile, degrading or humiliating”.

“Offensive” has been left out. That seems a little inconsistent.

Photo of Evan Harris Evan Harris Shadow Science Minister

I must take issue with the hon. Gentleman. Actually, the amendment would provide protection for religions. He gives the example of a cross or another religious symbol in a school that is used on polling day. That should not be forced to be covered up just because another public service is being delivered there. In fact, I would find it hard to argue that it was offensive. That is why my definition leaves out “offensive” from the idea of being harassed on religious grounds—to protect the religious freedom of other people. In fact, the motivation is opposite to that which he suggests.

Photo of John Mason John Mason Scottish National Party, Glasgow East

I can deal only with the words that the hon. Gentleman uses, but I am happy to accept his reassurance about the intention. He also used the term “thin-skinned”. I think that he was perhaps referring to religious or similar people. The word “bigoted” has already been used—again aimed at religious people. I find both difficult. If I was using those words about other people, people would rightly be offended, but there we go.

I am grateful that the Minister has said that she does not want to create a hierarchy of rights. I hope that she will reject amendment 231 for that reason. I do not agree with harassing anyone, but we have to be wary of turning schools, if this is what is intended, into a battlefield for competing world views. The Government seem to realise that there is too much scope for causing division, hence clause 80(1) specifically excludes the religion—

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One o’clock.