Harassment

Amendment proposed (this day): 230, in clause 24, page 17, line 26, at beginning insert, ‘Subject to subsections (2A), (2B), (2C) and (2D),’.—(Dr. Evan Harris.)

Question again proposed, That the amendment be made.

I remind the Committee that with this we are discussing 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.

Welcome back to the Committee and the debate, Lady Winterton. Amendments 230, 38 and 231 would make various changes to the definition in the applicability of harassment.  At the outset, I would like to deal with the question raised by the hon. Member for Oxford, West and Abingdon about why marriage and civil partnerships are excluded, because that point stands aside from the main thrust of the arguments.

We have already rehearsed the fact that the document “Discrimination Law Review” found little evidence of discrimination to justify the inclusion of marriage or civil partnership in the Bill as a protected strand, and there really is no need to include harassment. The hon. Gentleman also asked why pregnancy and maternity were not protected against harassment, but if a woman was subjected to that, there would be harassment related to her sex in any case, so there is no need to cover it in this provision. I hope that those two side points have been dealt with.

I shall now discuss amendment 38 as its reach is smaller and it is the most easily dealt with. As the hon. Member for Glasgow, East has said, British discrimination law contains a harassment provision. To show harassment, a person must show either that their dignity has been violated by unwanted conduct or that an intimidating, hostile, degrading or offensive environment has been created as a result of something. It is either/or—the disjunctive approach. By contrast, the definition in European equal treatment directives requires both limbs—the conjunctive approach.

It is difficult to see how the two concepts differ in practice. Conduct that violates somebody’s dignity will almost always create an offensive environment for that person. Therefore, if there is an extension by our treatment of those two limbs as disjunctive, we regard that as a small extension. That is the first point. The point that I rehearsed with the hon. Member for Oxford, West and Abingdon in an intervention is that our disjunctive approach, which is arguably a touch broader, was introduced to law as long ago as 2000 when the Race Relations Act 1976 was amended to implement the relevant European directive. He gave another example of a different branch of equality law where that disjunctive approach was present.

To use the conjunctive approach—the European approach, which is perhaps slightly narrower—would be regression. We would be going back from what we have already done and we are not allowed to do that under the principle of non-regression. That is another reason why we cannot implement the proposal.

As the Solicitor-General will be aware, I agree with her. Such a move would indeed be regression because it would narrow the definition. I want to probe her further on this question as it is relevant to my amendments.

I believe that the conjunctive approach would be a significant narrowing because violation of dignity is a personal and subjective thing. Whatever one thinks of the objective test and the extent of that in the legislation, it is harder for violation of dignity to be dealt with subjectively than it is to deal with the environment question. One can see evidence of an environment and that can be objective, whereas one’s own dignity, and whether it has been violated, is much more difficult to judge. I agree that there is a difference, but does the Solicitor-General accept that, on that basis, it might be more than just a slight difference?

No, I do not think so. It is broader, but not significantly so. It must stay broader, because we cannot regress—I, for one, do not want to regress that in any way.

Next, I will deal with the issue of objectivity and subjectivity that the hon. Gentleman raised, as it fits in with amendment 38 and the ones that he tabled. To reassure the hon. Member for Glasgow, East, if we are broader in this respect than is Europe, there is an additional element in our law, which is the objectivity that is required where harassment is not deliberate or intended. That is clear in clause 24(3), which the hon. Member for Oxford, West and Abingdon referred to.

For conduct to be regarded as harassment, one must take into account the factors involved: the perception of the victim, all the other circumstances of the case and, importantly, whether it is reasonable for the conduct to have the effect of harassment according to the definition in clause 24(2).

I want to reassure the hon. Member for Glasgow, East—this is on another limb—whose fear is that it is too easy to be harassed, which could restrict in particular religious freedom of speech, which is his interest. He will be reassured to know that that extra part is in there.

Regarding the objectivity of the test, the hon. Gentleman pointed to the fact that the definition of perception in clause 24(3) is couched slightly differently than in the old law, and that is right—we have tried to make it clearer. As he said, the elements of reasonableness are now separated, which may flag up the issue to some extent, but the important thing is that hypersensitivity cannot be used.

The hon. Gentleman feared that a person who was hypersensitive to a religious problem would say, “It is perfectly reasonable for me to say that that is harassment because I am hypersensitive, so the ‘reasonable’ test is passed.” That would make it a subjective reasonableness test, which it is not.

I welcome the Minister’s comments and give more strength to her arm in making the issue clear. This will be helpful. These issues have been subject to debate in the literature and this is a useful opportunity for her to clarify the Government’s intention.

In fact, this is already in domestic law. I am sorry to fumble, but for just one moment I lost the page where the case is set out.

I think this is useful because, as I understand it, the previous provisions seemed, as I said, to have one paragraph that did not seem clearly to separate the perception of B from the test. In “Equal Opportunities Review”, among other places, the matter has always been raised as a concern—a sensitive person might consider that the reasonableness test relates to them. I am interested to hear what more the Minister can say on that.

I am grateful to the hon. Gentleman for his intervention. The lesson learnt is not to eat one’s lunch while still at the papers, or two pages could get stuck together.

To reassure the hon. Member for Glasgow, East, the test has been set out in a case called Driskel v. Peninsula Business Services Ltd. The judgment said that the facts of a case in which harassment is alleged

“may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow”.

What we have done is replicate the current law. The reassurance is helpful to make it clear that although clause 24(3) says that the perceptions of B, the victim, are an important factor, the question whether it is reasonable to regard something as harassment is not for the victim to decide—it is an objective test. I hope I have provided reassurance on that aspect.

Amendments 230 and 231 together make up what I am afraid would evolve into a massively complex picture. They would provide protection against harassment on the grounds of sexual orientation and the grounds of religion or belief in the provision of services in exercise of public functions by public authorities. The definition of sexual orientation would be the disjunctive definition.

The conjunctive.

Forgive me, the hon. Gentleman is right. So, that would be narrower and it would mean that the complainant had to show that the harassment had both effects that we have already discussed. It would be the same for religion and belief, but removal of the “offensive” adjective in clause 24(2)(b) would result in the second limb of the test

“creating an intimidating, hostile, degrading, humiliating” environment. However, if it was offensive, presumably to the person who was religious, it would not amount to harassment, so there is a higher test for the religious. People could have more of a go at the religious under the hon. Gentleman’s provision than they could someone else.

To make it clear, as I did to the hon. Member for Glasgow, East, the amendment would allow more freedom for the religious to run the risk of offending other people on their religious grounds. It is not simply aimed at giving less protection to the religious. It is a religious-versus-religious thing. As we have recognised in other forms of the law, including incitement to religious hatred, there have to be higher tests all round so that free speech is not interfered with.

I shall try not to tease the hon. Gentleman again.

The amendment would also extend protection against sexual orientation and gender reassignment harassment to part 6, which is about education. It would use the definition of harassment that requires both limbs and retain the definition of “offensive” in the second limb of harassment.

In conjunction with another amendment, amendment 231 would extend protection against religion or belief harassment to the education section of the Bill, but using the narrowest definition of harassment and leaving out “offensive” again. I hope that I have all those right. They present a massively complicated picture, and one of our aims is to simplify the law and not make it almost incomprehensible. We do not want to extend protection for the sake of harmonisation.

The hon. Gentleman is keen on harmonisation. It seems he wants everything to be protected, arguably with the odd exception, but I have promised not to tease him. We do not want to do that. We want to legislate where there is a need for it. We do not see any need for any of those provisions.

There is no question of devaluing sexual orientation or religion or belief. There is no evidence that people are being harassed because of their sexual orientation or religion or belief in situations outside work. We have done a good inquiry on it and we have consulted. We asked for evidence and whether there was a need for express protection against religion or belief and sexual orientation harassment in any of or all the fields of the provision of goods, facilities and services; education; the management or disposal of premises; and the exercise of public functions. Nothing came back that convinced us or even started to persuade us that there was any need for such protection.

I turn to what the hon. Gentleman called captive communities. I understand that, as well as the example of prisoners suggested by the hon. Member for Daventry, but he is really driving at people such as schoolchildren. If someone is harassed in a shop, they can go to another shop, but a child housed in school does not have that freedom of choice. I understand that concern. None the less, we have not had any evidence that there is any difficulty relating to harassment in those captive communities.

Before I come to the question of bullying in schools and homophobic bullying, let us not forget that the public sector equality duty is in place and that that has a role in ensuring that public authorities—the service providers and the performers of public function—will have to give due regard to the need to foster good relations in respect of protected characteristics.

Turning to the hon. Gentleman’s significant concern about bullying and harassment in school, and whether these proposals are a way to tackle that, we really do not think there would be any practical benefit. We think that—not exclusively—most bullying at schools is pupil to pupil, and what we need to focus on is bullying action plans to stop that occurring, because the relationship between one child and another is not caught by discrimination law. Therefore, introducing that protection would not help anyone to take action against that kind of bullying.

The Department for Children, Schools and Families has put a duty on head teachers to have measures in place to prevent bullying, but the same Department has guidance for schools on dealing with homophobic bullying and it also will produce guidance very soon on tackling transphobic bullying in schools. There is already guidance on bullying in relation to race and religion.

If staff in a school treated children in a way that constituted harassment either because of their belief or because of their sexual orientation, that would be discrimination and it would be caught by the discrimination provisions. We simply do not see a gap to fill.

I hope I have run through this step by step and point by point, and I hope that the hon. Gentleman appreciates  that these proposals would produce an enormously complex outcome in any event, but I hope and trust he is satisfied.

Before the Solicitor-General finishes—she is coming to a summary of her conclusions—I want to deal with the question of schools. I note her point on homophobic bullying and how it is potentially different and could be treated differently from harassment on the basis of sexual orientation by a member of staff. I also note her point that a difference in treatment of a pupil by a member of staff would be discrimination.

I refer the Solicitor-General to the findings of Stonewall’s 2009 teachers’ report, which, in respect of homophobic staff, report that more than two in five secondary school teachers and three in 10 primary school teachers have heard homophobic language or negative remarks about gay people from other school staff. Also, half of gay pupils have heard homophobic remarks from teachers and/or other school staff and 30 per cent. report that adults have been responsible, for instance, for homophobic bullying in their schools. There is then reference to some teachers being homophobic.

Does the Solicitor-General not accept that there is some evidence that does not count as discrimination, because it may not be demonstrated in differential or detrimental treatment, although it shows that there is a staff-to-pupil problem in some attitudes? Indeed, would she count as harassment the idea of children being told that gayness—and their parents, if they are gay—is innately or objectively disordered and sinful?

I do not know of a school that I have come across that talks to its children in that way as a matter of course in any event. What we are looking at is truly legislating where there is a need, not legislating where there is no need.

The hon. Gentleman refers to Stonewall, but Stonewall, as he heard, gave evidence to us only about a week ago to the extent that it has no evidence of the need to extend protection against sexual orientation harassment in schools. We will legislate if it is there, but it is not. Stonewall must be the expert, and it says it is not. I hope he will withdraw his amendment.

I have listened carefully to my hon. and learned Friend’s arguments, and I will support the Government on this matter. However, I want to say a word about the question of homophobic bullying, because I think she perhaps does not take it as seriously as she should.

One has to be a parent of an adolescent child who is in school to understand the reality of homophobic bullying, because to my certain knowledge it occurs in London schools. It is a paradox: for grown-ups it has become less and less acceptable to engage in casual homophobia, but homophobic abuse of the sort that one hears quite normally in primary and secondary schools, certainly in London, is something I never encountered when I was going to school.

Furthermore, physical and verbal homophobic abuse do not occur in a vacuum. They occur in a school society where “gay” is a common term of abuse. A child can attract the term “gay” for a range of activities,  including wearing their school blazer, putting up their hand in class, doing their homework, admitting to reading a book or taking what is deemed by their peers an undue interest in educational matters. All those things get boys in London schools labelled “gay”.

Some teachers, perhaps older teachers, see that as a joke, but I believe that it contributes to an atmosphere where boys—particularly working-class and black boys—feel inhibited from exhibiting anything other than what may be described as stereotypical male education-hating behaviour.

Such an atmosphere—where “gay” is a term of abuse and all sorts of behaviour that we, as middle-aged, liberal, educated people, may consider normal—is smeared as “gay”, which can be difficult for pre-adolescent boys and can lead to specific physical and verbal abuse of individuals. I believe that creates an intolerable atmosphere for many boys and some girls in our schools.

I do not accept my hon. and learned Friend’s assurances that legislation covers it. It is not my experience, as a parent and someone who goes into schools, that we are doing enough to say that such an atmosphere, such language and such physical abuse are not acceptable. It is all very well to talk about schools having codes of conduct on bullying—every school in Hackney, North and Stoke Newington has a code of conduct on bullying—but I cannot tell her that every school does not have a problem with bullying. A code of conduct is a long way from instilling in children a way of behaving.

The other day I read in the newspaper about a little American boy—12 years old, good looking and charming, by all accounts—who hanged himself because he was consistently abused at his school and accused of being homosexual. We cannot look at the physical act of bullying as an isolated act. We cannot understate the manner in which a toxic, homophobic culture has taken grip in many schools.

The earliest race relations legislation did not result in a wave of prosecutions, but created a climate and signalled society’s attitude to such behaviour. Anything that the law can do—not just to enable individuals to be prosecuted, but to create a climate and signal our attitude to such a climate in schools—will help some very frightened and unhappy boys. They exist at this time—today, as we speak,

That is a powerful contribution from the hon. Lady. I feel exactly as she does. My consideration of this, and agreeing with her, does not lead me to support the Government, although I am not as natural a supporter of the Government in all matters as she is.

That is my Whip.

From a sedentary position, the hon. Lady tells us that she is being effectively whipped at the moment. I am not saying that that is a form of bullying on any grounds, but I hope it does not continue as it would be a personal tragedy for her and a waste for the House and the media world if she were kept in line more often than she is.

Moving on to a substantive point, as I said, my reading of the situation, given the evidence of harassment in schools on the grounds of sexual orientation, for example, leads me to argue for a change in the law. The  fact, if it is the case, that Stonewall does not agree on that is of interest, but the Minister was on stronger ground when she argued that law should be based on the evidence of a mischief and whether the law is an effective way to deal with it.

That is the basis on which I would be prepared to make my stand here—and indeed others, at later stages of consideration of the Bill—rather than saying that because person X or a particular lobbying organisation does not support a particular proposal, for whatever reason, that should be the end of the matter. Other organisations, such as the Equality Network in Scotland, Schools Out and others, not only recognise the problem—as Stonewall, which does excellent work, does—but have a different prescription for the solution.

As the hon. Gentleman well knows, we have evidence from all those bodies—I cannot say from the Scottish one, but we have evidence from the others. The contribution from my hon. Friend the Member for Hackney, North and Stoke Newington was immensely touching and very strong. Much of it would not be covered by discrimination law if we agreed to the hon. Gentleman’s amendment. With greater understanding now, we appreciate that there is a sizeable problem, but we always have to remember the limitations of what we are doing. This is not the way to solve the problem.

I do not think there is anybody on the Committee who cannot recognise the problem. I do not doubt the Government’s intentions in tackling the wider issue—not just harassment, but pupil-to-pupil bullying and so forth. I have not spent long going over examples this morning or now, but it would be appropriate to do so because we are dealing with specific legislation.

My point is that the case is made on the terms of a mischief. Without changing the culture and training and without procedures being put in place, legislation is never sufficient on its own, but leaving a gap uncovered sends the message to the providers of services—including schools—that this sort of bullying and harassment is not as serious as other forms, such as racial harassment and bullying. That message relates not to the substance, but to whether there is a legal obligation. In fact, this form of bullying is just as serious if not more so, on the basis that it is not always as universally condemned as—thank goodness—racial harassment and bullying are. I accept the Government’s point about the single equality duty on public bodies, which, in respect of sexual orientation, is a form of section 28 in reverse. That section was so bad that there is no reason why it should not be reversed. We will debate that later, but the Liberal Democrats do not believe that it is sufficient in these terms.

To respond to a couple of points that the Minister made on the substantive basis of the amendments, I accept that they are complex. I wanted to deal with the issue in an amendment, but it was difficult to do that in the way that the clause is laid out. I am glad that she was able to understand what was covered, and I agree that if something similar ever comes to fruition during the passage of the Bill, we will have to find a neater way of doing it.

The amendment makes the point that the provisions need to be extended. Even if we eliminate a form of discrimination and detriment that occurs in this country, we would not repeal the law even though the mischief  has gone. Therefore, one does not have to look too hard, where the principle of the case is made out, for evidence of something that would be covered by a harassment division and not direct discrimination. In her reply, I think that the Minister made it clear that, by definition, not all cases of harassment involve discrimination and, if the comments or conduct do not amount to different treatment per se but just create that environment, they would not be covered.

There is a huge gap in the provision of public services and in schools, as well as for religion and, indeed, sexual orientation. The House will need to come back to this matter. I have clearly not yet persuaded the Minister of that point, but I do not feel that there is any virtue in dividing the Committee on the complex set of amendments that I have tabled. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.