Clause 143

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

Danfonwch hysbysiad imi am ddadleuon fel hyn

Public sector equality duty

Amendment moved (this day): 249, in clause 143, page 105, line 13, at end insert—

‘(2) Subsection (1)(b) does not apply in so far as it relates to religion or belief.’.—(Dr. Evan Harris.)

This amendment removes the duty on public authorities to have regard to promoting equality of opportunity between religious people.

Photo of Ann Winterton Ann Winterton Ceidwadwyr, Congleton 4:00, 30 Mehefin 2009

I remind the Committee that with this we are discussing the following: amendment 49, in clause 143, page 105, line 32, at end insert—

‘(4A) Having due regard to the need to foster good relations between persons who share a relevant protected characteristic and persons who do not share it involves ensuring a proper balance between the rights of persons who share a relevant protected characteristic and the rights of persons who share a different relevant protected characteristic.’.

Prevents public authorities using the public sector equality duty to favour the rights of one group over another.

Amendment 297, in clause 143, page 105, line 32, at end insert—

‘(4A) In complying with its duties under this section, a public authority shall not inhibit lawful free expression.’.

This underpins the need to preserve lawful freedom of expression in public life.

Photo of Evan Harris Evan Harris Shadow Science Minister

It is a pleasure to welcome you back to the Chair, Lady Winterton.

I had set out why we were particularly concerned to deal, in our amendment, with the quality of opportunity limb of the positive duty and its relation to religion and belief, not limbs 1 and 3 and limbs A and B of subsection (1). I also explained that, even if subsection (1)(b) survived—my probing amendment would delete it—changes to subsection (3) would be needed, because of the concern about how subsection (3)(b) might work in practice in relation to religion and belief. It may not even be necessary to delete that paragraph; it may be necessary only to qualify it in some way to ensure that we gain the intended benefits without the drawbacks.

I was discussing with the hon. Member for Glasgow, East whether “needs” was an objective term. I am concerned that nothing in the structure will require a public authority to judge whether the needs that are cited, which may be genuine from the point of view of  the individual or the religious community that claims to have them, are reasonable to meet. Will the Minister clarify whether it is her view that some form of reasonableness test exists in relation to that?

Clearly, having regard to something does not require one to do it, and the public authority may still not consider it reasonable to do. I am concerned that the expectations of individuals who seek to have their needs met may be raised, but that they may not realise that, although public authorities should have regard to something, that wording still allows them to say that, in all circumstances, either it is legitimate for them not to meet those needs or that meeting them would not be the most effective way to deliver services.

Our concerns about this matter are set out by the Equality and Human Rights Commission in its briefing, which seeks to rebut those concerns, and stem to a certain extent from work done and concerns raised by Lord Lester of Herne Hill, who has been engaged in correspondence with the EHRC and has recently published an article, co-authored with Paola Uccellari, in a law journal, setting out his concerns in more detail.

The fundamental questions in relation to the provision are, first, whether there is a judgment about whether the needs are reasonable and, secondly, whether this will lead to a call for and a meeting of the demand for services to be delivered to people on religious grounds. This is different from the other strands, as I was saying when discussing the point with the hon. Member for Glasgow, East, because there are no other grounds on which public services can be delivered, to the same degree, in a discriminatory way. There is no exception in any schedule for services to be delivered on the basis of an ethos specifically to people of one gender, race or form of ability or disability—that is no surprise—but there is a wide exemption in schedule 23 that enables public services to be delivered by organisations of a religious ethos only to users of those services who pass a religious test. That is why, when considering public authorities and public functions, one cannot claim that religion is therefore just like every other strand.

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

The hon. Gentleman seemed to suggest that no other strand or protected characteristic is allowed special exemption or protection. However, I understand that virtually every strand is. He mentioned disability. Clearly, many organisations, including public authorities, are allowed to favour and help those who are disabled.

Photo of Evan Harris Evan Harris Shadow Science Minister

I was very careful about what I said. I spoke about the structure of the exemption in schedule 23. Of course the Bill allows for services to be provided in specific ways that are appropriate to individual needs. However, schedule 23 is different. The hon. Gentleman must accept that. Paragraph 2(10) states:

“This paragraph does not permit anything which is prohibited by section 27”— which is about not discriminating in the provision of services—

“so far as relating to sexual orientation,” but not to religion. That applies to services provided on behalf of a public authority or

“under the terms of a contract between the organisation and the public authority.”

Things are entitled in relation to religion that are not entitled in relation to sexual orientation, which is peculiar.

There is a wide exemption for religion elsewhere in schedule 23, relating to religious ethos. A restriction is permitted

“relating to religion or belief only if it is imposed...because of the purpose of the organisation, avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.”

That is a pretty wide provision that is not allowed in respect of any other characteristic—for example, sexual orientation.

Before we broke for lunch, I was about to explain another reason why religion is different. The hon. Member for Glasgow, East said that to exclude religion and belief from part of the positive duty provision would be setting it aside for different treatment from the other strands. However, it is already treated differently by legislation and by the House, which voted to have different approaches for religion and race in respect of incitement to hatred, even though the mischief makers might be similar, because it recognised that religion was different—it relates to belief, which is not as innate a characteristic as the other strands.

Inevitable conflicts arise between different religions because of freedom of speech. That does not exist for the other strands. One person’s strong expression of religious belief is another religion’s blasphemy. Long may that continue. I am a strong believer in the right to religious belief and the right to express religious belief, even if it offends other people. That is the nature of having free speech for religions. However, one cannot say that about any other strand to the same extent. My point is that religion is already recognised to be different. The organisations that have supported the hon. Gentleman’s amendments were on my side of the argument—they may say that I was on their side of the argument—when we debated the need to ensure that incitement to religious hatred was treated differently from the other strands. I stress that there is precedent for this.

The arguments about why there is a problem boil down to four or five areas that I will go through. I will try to deal with the rebuttals that might come. The first problem is that a duty to advance equality of opportunity for religion or belief may inspire and entrench resentment, rather than dispel it, even though that may not be the intention. It will engage public authorities, such as local councils that are already overstretched, in matters that should not concern them and that are a distraction to their main mission. There is a real problem that organisations or individuals of a certain religious belief will seek to say, “Why can’t I have this service delivered to me in the way that I want? You have a duty to do it.” Such cases will occur quite frequently, and the corollary will be absurd calls for local authorities not to engage in Christmas celebrations because they do not advance equality of opportunity across all religions.

Essentially, subsection (3)(b) involves the meeting of needs on an equal basis. The Government may not intend to cover specific and unique support by a public authority for a religious festival such as Christmas, which is the most important festival of the most commonly held religious belief in this country, but that is what may flow from the measure. That already happens, and the danger is it will happen even more.

Another concern is that there will be a blurring of the boundary between needs that are based on holding a religion and needs to implement, or see manifested  more widely, the consequences of that religion. For example, public authorities may be asked, regardless of whether it is the intention of the statute, to make extra provision to allow employees to discriminate in line with their religions beliefs on the basis that they have that need. I do not doubt that many religious people genuinely feel that they have a need not to be forced to register gay partnerships. The Minister has been clear—perhaps not as clear as she could be if the measure was set out in statute—that it is unacceptable for an employee of a public authority performing a public duty to discriminate on another ground in the exercise of those public functions. However, there will be calls for that based on the public duty, which would be regrettable given that, even before we have the public duty, there are already those calls that cannot be justified.

Another concern is that organisations and individuals will argue that public authorities need to support their religion in the way in which the state supports the established Church and other Churches more broadly through certain exemptions for places of worship and so forth. If the authorities do not support their religions in cash terms, they will argue that it is not equality of opportunity.

Naturally, many of the views and opinions held by religious people are dictated by religious doctrine, and they relate to areas of public policy. On the basis of public sector duty, does the Minister understand the risk of public authorities being asked to have regard of some religions that do not want to have gambling in the local authority area or sex education in state-run schools?

If evolution is being taught in schools, some may argue that creationism should be taught as well. Again, it is hard to argue that that is a need. Moreover, it is hard to argue that that is not a need that is different from the needs of people who do not share the belief, or the “relevant protected characteristic”. I can see nothing in the provision’s construction that will give an obvious defence to local authorities that will enable them to strike out such a claim at the outset. We need something that can be pointed to in statute that shows that the public authority can say, “No, we are not going to do that. It is not justified.” If we do not have that, the public authority will have to say, “Okay, we will investigate it and see if we can reach a compromise, and we accept that you have a need that is specific to your religion” and more and more claims will be made under the duty.

I should be grateful to the Minister if she told us how a local authority and an education authority will respond to an argument made under subsection (1)(b) and (3)(b) that their need to have creationism taught should be met on the basis of equality of opportunity. We have already debated the fact that people cannot claim discrimination if creationism is not taught in the curriculum, because the curriculum is exempted from such claims. However, I am not talking about that. What comes into play here is the positive duty outside of simply not discriminating

A further concern—my real one—that I hope the Minister will be able to address at some point is that religious organisations funded by public authorities are involved in the provision of public services. We know that such organisations claim that they need to provide services for a particular group of people, which I can  accept in principle, or that, because of their ethos, doctrine or the need not to offend people who are of their belief, they want the right to discriminate in the provision of public services on the grounds of religion and belief. That means—and we can see it happening now—that public services are delivered by religious organisations under contract to a public authority to specific religious groups. Such organisations say that they are catering only for those religious groups. I have concerns about that, which I will discuss in relation to schedule 23.

My point is that if we couple that with the right of everyone to have their needs met, what is to stop every religious community saying, “Well, you fund this organisation with cash to provide this service to their people. We think you should provide this service to our people through our organisation.” Again, I cannot see how the local authority will be able to resist that request or, at least, not feel under great pressure to do so and, indeed, to defend itself in court if necessary. Such a measure will have created the start of what I have described as the trend towards the balkanisation of services.

We are asking for some stop on that process—perhaps through some restriction on discrimination on the grounds of religion in respect of the exemption permitted under schedule 23. I say to the hon. Member for Glasgow, East that that would still allow the sort of provision that is already allowed in other areas, but not under such a wide exemption. Alternatively, there should be some stop within the measure that enables public authorities to have due regard to the matter. I know my feelings about the splitting up of public services in that way are shared by many people, especially in the House of Lords.

I have already said that there is a concern that the provision will be misunderstood by religious organisations. They will say, “If there are Christmas celebrations, we should be entitled to our own celebrations funded and backed by the public authority.” I do not think we should go down that path. Perhaps the Minister thinks that that is a path down which we want to go, but sooner or later one has to draw a line.

Photo of John Mason John Mason Scottish National Party, Glasgow East 4:15, 30 Mehefin 2009

I am restraining myself from intervening too often, but on that point, is the picture that the hon. Gentleman paints not a little bit away from reality? The reality in Glasgow, with which I am familiar—I believe it is also the case in other cities and boroughs—is that councils support the celebration of religious and other cultural events across the spectrum. They might support a larger group a little bit more, but my experience of local authorities is that they are very good at supporting all sorts of groups in the community. Is that not the way we want to go?

Photo of Evan Harris Evan Harris Shadow Science Minister

Local authorities do not need legislation of this kind to do that. The provisions might mean that they have a duty—not discretion—to do such things. Every religious group might say, “We have a right to be funded to the same extent as every other religion is funded or supported by you”—by which I mean the public authority. There is no bar to that expectation in the drafting of the provision. I am all in favour of there being discretion, but the duty to have regard to the need to provide equality of opportunity coupled with the fact that public authorities are already funding some  religions to do certain things, will lead to more not less religion-specific provision. It will also lead to more divisiveness and more segregation in the delivery of public services. That is not something we should be looking towards.

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

Again, I wonder about the gap between the theory and the reality. If, for example, a religious group is giving out soup to homeless people at night, it will give it to every single homeless person who is there. It would not know what someone’s religion was, if they had a religion or about any such issues. Surely there is a danger, if we go to the other extreme, of squeezing out all the religious groups that hand out soup, and the people who will suffer are the homeless people who will not get any more soup.

Photo of Evan Harris Evan Harris Shadow Science Minister

There is nothing wrong with local authorities giving contracts to religious organisations. My concern is where religious organisations discriminate on the basis of religion or belief. An example is given in the explanatory notes to another part of the Bill. Public funding may be used for adoption agencies, which perform a critical public function. It is the Government’s intention, apparently, to allow adoption agencies to discriminate against people of the wrong religion in deciding who can apply to adopt a baby.

Perhaps Catholic adoption agencies are a particular attraction to prospective Catholic parents. There is nothing wrong with that—indeed, they could market more among those people—but to say, “No Protestants can access services through us” seems to me to be wrong in a public function, whether or not it is funded by the public. It means that a Muslim organisation or Muslim individuals will say, “Wow, there’s a Catholic adoption agency and we can’t apply there. Equality of opportunity means by definition that we should have our own adoption agency, which caters only for us.” Then the Jews might say, “Well, we can’t apply to the Catholic or the Muslim adoption agency. We want our own” and then Protestants will want their own. The only group that would not want their own—although they might be forced to have one—is the atheists.

A balkanisation of services would result, founded on the basis that discrimination is allowed, for no good reason. I do not think the parents’ religion matters, in the end, in terms of whether babies will be well placed with them. I agree that Catholic adoption agencies might encourage Catholic parents to come forward. They might be good at recruiting parents, who are desperately needed; I do not have a problem with that. But to have a blanket ban on people of other religions accessing a public service is unjustified. Coupling that with an equality duty will result in the same thing with every single religious organisation, and only religious organisations. An adoption agency cannot say, “No blacks,” so that balkanisation would never occur in race; it occurs only in religion. The cat is already out of the bag, unless we close it in this clause. I have made that point enough times, so I promise not to return to it.

In the paper provided to hon. Members, the EHRC makes the point that a possible benefit of the public sector equality duty in respect of religion and belief is improved access to health or other public services

“by enhancing responsiveness to religious sensitivities and practices, such as greater consideration of the impact of Ramadan observance in the context of providing health care, support for students and even in terms of adjusting scheduled timetables”.

I have not argued that there is no merit in the proposal whatever; this is just a series of risk-benefit analyses. However, many of the examples given by the EHRC are clearly covered by subsection (3)(a), for example. If my amendment is not made, and an amendment were later made to remove subsection (3)(b), leaving in subsections (1)(b) and (3)(a), any disadvantage suffered by people who cannot access services could be covered. I would be prepared to see it covered; I cannot speak for Lord Lester, who I suspect feels more strongly about the public sector duty as it applies to religion. If a clear disadvantage is suffered by people who share a relevant protected characteristic, the provision can be left in, but that is different from a cited need. That is why many of the EHRC’s examples can be addressed without the need for subsection (3)(b), although I accept that some of them are arguable.

Many of the EHRC’s examples are examples of unjustifiable indirect discrimination. If one criterion for accessing health services in a hospital is wearing a very immodest gown—both women and men are made to wear them, but in this case, it is of concern to Muslim women—and people cannot comply with that criterion because of their religious belief, that is unjustifiable indirect discrimination. Hospitals should provide—many do, and they all ought to—appropriate hospital gowns that do not create such discrimination. I do not believe that it is a question of need as laid out here.

Other examples given by the EHRC involve improving police practice and attitudes across the public sector towards particular religious groups. It is not my view that a public sector equality duty is needed to achieve that, where it is required. That has been happening for a long time, and I do not think that the public sector duty should hinge on whether that is done.

The EHRC gives the example of the provision of women-only gyms, but the Bill already permits women-only gyms or swimming periods to be provided. A public sector equality duty is not required to allow that for, for example, Muslim women. Interestingly, the EHRC cites the Southall Black Sisters in defence of extending the public sector equality duty to religion and belief, but, in fact, that group has written to the discrimination law review consultation strongly opposing extension of the public sector equality duty to religion and belief.

I quote from the organisation Women Against Fundamentalism, which

“is opposed to the extension of the single equality duty to religion and belief. We strongly feel that an extension will not promote equality but will instead reinforce inequality...We would remind the Equalities Office, that the right to manifest one’s religion, unlike the race and gender equality duties, cannot be treated as an absolute duty.”

It says “duty”, but it is a right, of course. Women Against Fundamentalism goes on to state that there is

“an urgent need to address the complications that arise when religious discrimination is treated unproblematically as an ‘equality’ strand. At national and local levels, religious identity politics is being contested by women and others within minority communities, as well as in the wider society in their struggle to be free from racism, gender violence or other oppressive restrictions whose persistence are themselves an indicator of inequality.”

That group has concerns, and I know that the Minister will be aware of other organisations that share them.

Southall Black Sisters wrote to say similar things about its opposition to the provision relating to religion. It stated in its letter of 8 October to the discrimination law review team:

“Our concerns about extending the equality duty to religion and belief stem directly from our day to day casework experience and our struggle to maintain a service for all black and minority women in a context where the politicisation of religion (a deeply reactionary and discriminatory development) worldwide, has resulted in the shrinking of secular spaces—a necessary precondition in our struggle for women’s human rights.”

The letter goes on to explain the background of Southall Black Sisters, which is a respectable organisation. That is why I am not surprised that the EHRC should seek to cite it in support, but, in fact, the group is clear that it is opposed to the duty. It states:

“By seeking to include religion in the promotion of equality, our concern is that the state will be signalling the view that the promotion of equality involves supporting organisations of a particular faith or belief even if they have beliefs that are profoundly exclusionary and discriminatory. By extending the equality duty to cover religion, the state will be implicated in promoting indirect discrimination and inequality and indeed in human rights violations, leading to a watering down of human rights standards where minority communities are concerned.”

I do not say that the group is saying that that applies to all religious organisations or, for example, to Muslim organisations in general, but it is clear that its experience from the work that it does shows that there is a problem. It does not want what it sees as the subjugation of women by some religious organisations to be helped by the state through a public sector duty.

I have raised with the EHRC, as has Lord Lester, a concern about this matter of public policy: religious organisations will say that equality of opportunity means that their need to have creationism taught in schools, or not to have casinos in their area will be supported by an equality duty. For some reason, in its response, the EHRC seems to feel that the concern is about legislation—that there would be a positive duty in legislation to promote equality of opportunity. We are talking about public policy, not legislation.

Finally, I return to the main concern. We must decide, when considering how to proceed carefully and get the balance right, whether we will be a bulwark to the increasing trend, and the fear of an increasing trend, for public services, whether adoption, counselling or hospice services, to be delivered on the basis of one religious group receiving from one provider, and another religious group receiving from another. That trend goes against the rest of the public sector equality duty, which talks about fostering

“good relations between persons who share a relevant protected characteristic and persons who do not share it.”

It is a matter of concern that an attempt to promote equality might lead to greater conflict.

We must be certain that the promotion of equality will not be used by public authorities to suppress free speech. Some people feel very strongly about other people, and that might be because of those other people’s religious views or behaviour. The people who feel strongly are often, though not exclusively, of their own religious view. There is a concern that public authorities will feel pressured to restrict freedom of speech, to meet people’s need not to be attacked—short of unlawful incitement  to hatred and violations of the Public Order Act 1986—and will say, “We are not going to allow you to hold your meeting in our hall.”

I should like an assurance from the Minister that, although we might not agree with strongly held religious views being expressed against the followers of other religions, the public sector duty will not be used by public authorities to justify not allowing, for example, a fiery Baptist preacher to preach in strong terms to his followers against followers of other religions, short of breaching laws on incitement to religious hatred. In promoting community cohesion, there is a natural concern to prevent such activity, but we must recognise that the protection of free speech trumps much of that concern when the speech itself is not unlawful. I should be grateful for clarification and support from the Minister on those grounds.

Amendment 297 is about exactly that need to protect free speech when public authorities perform their duties. It is only a probing amendment, but I want reassurance from the Minister that the duty will not be used to undermine the free speech of individuals, whether they are religious or not.

Photo of John Mason John Mason Scottish National Party, Glasgow East 4:30, 30 Mehefin 2009

I appreciate the opportunity to speak this afternoon, Lady Winterton. I want to start by touching on the final remarks of the hon. Member for Oxford, West and Abingdon, who painted perhaps a slightly extreme picture of where we are, or where we are going. He used the word “balance”, which was encouraging; we are looking for some kind of balance and compromise. We do not want one group to be dominant over others.

I was interested in the hon. Gentleman’s view that society might be moving more towards religious organisations running things. I had felt that things were the other way round. In Scotland, virtually all the schools were started by Churches and have gradually come to be run by the state and to become more secular. The trend that I and, I think, other religious people perceive is away from religion and towards secularism.

I am happy to welcome the clause and its intentions. The idea of a public sector equality duty is good, and I welcome it on the whole. In the Equality Act 2006 and the 2007 sexual orientation regulations, the Government decided against extending the public duty on the grounds of religion and sexual orientation because of the controversy that it could have caused. The Government wanted to take their time. The question remains: have we got the right balance?

Clearly, some want the duty to do more, and others want it to do less. The BBC and Channel 4, as publicly funded broadcasters, say that they are worried that the duty goes too far and that it might affect their editorial independence. I assume that the Conservative amendments in the next group would address that. The TUC, however, says that the duty does not go far enough and that it should apply to charities. Of course, much of the detail on how the duty will apply is yet to be thrashed out in secondary legislation, which we will come to when we debate clauses 145 to 149.

The Government have taken on a monumental task in trying to square this circle. Amendment 49 goes to the heart of what I have been trying to achieve throughout the Committee, which is a recognition of the need for balance between the various competing rights and the  fostering of good relations and mutual respect between people of differing views, rather than one side being given a stick with which to beat the other. I hope that I have found some support for that.

I am also grateful that, although the Minister has not accepted any of my amendments, she has sought to offer reassurance to religious groups that religion does not come bottom of the equality pile. My amendment would make that clear. In fact, it would make it clear that no strand comes bottom of the pile, but that public authorities promoting equality must balance all strands.

Subsection (1)(c) mentions the need to “foster good relations”. I must admit that that is one of the phrases in the clause about which I am most enthusiastic. My amendment would make it clear that fostering good relations involves a

“balance between the rights of persons who share a” particular

“protected characteristic and the rights of persons who share a different...protected characteristic”.

Clearly, as is now obvious to all, a clash is most likely to arise between rights based on religion and belief and rights based on sexual orientation. Some people feel that one strand dominates another. We have previously talked about the case of Lillian Ladele, the Christian registrar. I understand that since last week, one of Miss Ladele’s colleagues has gone public about the fact that she too has been disciplined and threatened with dismissal by Islington over her conscientious objection to registering same-sex civil partnerships. Supporters and opponents of Miss Ladele both feel that the Employment Appeal Tribunal ruling on her case, which is being appealed, means that every time religion conflicts with sexual orientation, the latter wins. Adam Fuge, a principal at Matthew Arnold & Baldwin solicitors, wrote in Personnel Today magazine in May that the Ladele case means that there is now

“a pecking order of competing equalities” in which religion often loses out.

Photo of Evan Harris Evan Harris Shadow Science Minister

Will the hon. Gentleman not accept that that is a statement that the right not to be discriminated against in the receipt of a public service—on whatever ground, because a religious person could want to racially discriminate—always trumps the right of someone who is delivering the public service to manifest their religious belief in a discriminatory way? That is nothing to do with religion versus sexual orientation; it is to do with the right not to be discriminated against versus the right to discriminate while delivering a public service.

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

I would word it slightly differently. I suggest that the right not to be discriminated against applies to both the gay couple and the employee. The gay couple have a right to have their relationship registered and the employee has a right not to be discriminated against by their employer. That is what I am trying to raise in the Committee. Ultimately, it is for Parliament to decide how to bring together those two apparently conflicting examples of being discriminated against.

Photo of Evan Harris Evan Harris Shadow Science Minister

Let us say that there was a registrar with British National party sympathies. Let us suppose that, because of their strongly held beliefs, they did not want to register gay couples. Would it be right for the council  to say, “All right, we’ll schedule you something else,” or would the council be right to say, “No. Whatever your views, you have to do your job”?

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

At the beginning, we discussed the link between sexual orientation and sexual behaviour, and the link between religious belief and religious behaviour. That is what I am discussing now. Clearly, I am not trying to deal with the separate question of what happens when someone is in the BNP and a racist.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

Looking at the detail of the hon. Gentleman’s proposals, and thinking back to a debate on a previous clause, I remember that he raised the issue of how, in such a circumstance, the two different sides—employee and management—behave and how they deal with and resolve the clashes of rights. Does he think that a proposal such as his amendment 49 would effectively get those public bodies to think a little harder about how they manage those clashes of rights? Perhaps they would still have the same outcome, but they might get there a little more sensitively and have at least made a better effort at balancing those competing rights.

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

I appreciate that intervention, because the hon. Gentleman put it very well—getting people to think a bit harder. That is why I was keen to be part of the Committee and to see the provision reflected in the legislation and put into effect by the public bodies concerned.

The lawyer to whom I referred says that although equality laws are supposed to protect religious believers from discrimination, case law has tended to place religion at a disadvantage compared with other protected characteristics. Michael Rubenstein, publisher of Equal Opportunities Review and by no means sympathetic to Miss Ladele’s position, has said that he, too, believes that the Employment Appeal Tribunal ruling is wrong.

The view seems to be that since the law requires public authorities to provide civil partnerships, a registrar who does not feel able to do that should get another job. However, we do not take that view with teachers. Schools are required to provide religious education and, as was mentioned the other day, to provide a daily act of collective worship that is

“wholly or mainly of a broadly Christian character”.

That is a legal requirement placed on a public authority, just as the Civil Partnership Act 2004 is a legal requirement placed on a public authority. Does that mean that all teachers must take part in fulfilling that duty? No.

Sections 59 and 60 of the School Standards and Framework Act 1998 specifically allow a teacher to opt out of providing religious education or participating in collective worship, which is quite right. That is the pluralistic society that I am looking for. The law creates space for atheists and for people of differing religious convictions not to be compelled to take part in promoting things to which they conscientiously object. Why can we not do the same for issues of religious conscience in other settings?

Photo of Evan Harris Evan Harris Shadow Science Minister

That is all backwards. The problem with collective worship and sections 58 to 60 of the School Standards and Framework Act is that they create religious discrimination. My position and that of the Liberal  Democrats is consistent: there should not be that religious discrimination. If we did not have the discrimination of forcing people in school, potentially, to deliver a prayer that they did not want to, we would not have to have the exemption. The hon. Gentleman must remember that section 60 of the School Standards and Framework Act allows a state school to sack a maths teacher for not believing in God, if it is a reserved post. I do not think that he can defend that as a paradigm of fairness in religious terms.

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

On that point, I am perhaps more in agreement with the hon. Gentleman than I usually am. On whether there should be religious worship in schools and his reference to the maths teacher and so on, I broadly agree with him. My point is that in other parts of legislation there is scope for the individual to have a little freedom of manoeuvre—that is what I am asking for here. I am not seeking a “get out of jail free” card, which would make it impossible for a local authority to fulfil its functions, but simply some reasonable accommodation for individuals. The opt-out works well for teachers, and pupils do not suffer. Why could the same not be true for registrars?

My amendment would focus the minds of decision makers in local authorities on the need for such give and take in all their functions. Even if the public sector duty does not apply specifically to employment, it would affect the culture, which the Minister is very keen on doing through the Bill. There is a danger that, without my amendment, the new duty could be used against religion, pushing it further out of the public square. Leaving sexual orientation aside, there are lots of stories about how existing equality requirements are used to remove expressions of religious faith from the public square.

Oxford city council was criticised in November last year for deciding to hold a winter light festival in the city instead of traditional Christmas celebrations. Interestingly, the strongest criticism of the council came from non-Christian religious leaders.

Photo of Evan Harris Evan Harris Shadow Science Minister 4:45, 30 Mehefin 2009

The hon. Gentleman mentions my constituency, so I rise to support the actions of the Oxford Inspires group. The event was not a substitute for Christmas light celebrations at all. That was a typical myth produced by one of the newspapers, and it has been denied. Everyone in Oxford who is aware of the facts accepts that that was not so. The allegations about Winterval are exactly the sort of thing that we are likely to see if this public sector equality duty is red in tooth and claw regarding religion or belief. We should downplay that aspect in respect of the public functions so that public authorities can get on with delivering what is required, rather than have scare stories about Christmas lights being taken down.

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

I am happy to accept that the hon. Gentleman’s knowledge of the detailed case is greater than mine. All we are trying to say is that there is a tradition of Christmas and Easter—and Muslim festivals as well—which we are all happy to celebrate or, at the very least, happy to allow other people to celebrate. We do not have to water everything down to a minimalist secular position.

People over-interpret concepts of religious equality as requiring the eradication of religion, especially the traditional religion, which in our case is Christianity. There needs to be a rebalancing of how public authorities handle the different equality streams. Good relations between strands are not possible where religion is ignored. I feel, as do others, that something needs to be done, and where better to start than in this Bill?

Amendment 249 would leave religion out of the public sector duty altogether. If the proposal had been to leave out religion and sexual orientation, that would have had the virtue of avoiding the main clash of rights that I am concerned about. However, leaving out only religion, yet again, relegates religious people. The explanatory wording to the amendment talks about removing the duty

“on public authorities to have regard to promoting equality of opportunity between religious people”, as if it is just about stopping inter-religious strife, but it is also talking about potential strife between religious people and others. I hope that the Minister will not accept the amendment.

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

Let me speak to Amendment 249, which would provide that public authorities would not be required to have due regard to the need to advance equality of opportunity between people who share a religion or belief, and those who do not share such a religion or belief.

The duty is about getting public authorities to think about whether there is any evidence of individuals suffering disadvantage, and then to think about whether there is anything that they can or should do to tackle that. My hon. Friend the Member for Stroud put his finger on that at the outset. He was right that that is the primary aim.

We have approached this from the position of finding out whether there is any evidence that some people with religious beliefs are suffering disadvantage or have different needs. That is a narrow question, and we think that the answer is yes. Let us take different needs first. Because of their religious beliefs, some members of religious groups might have different needs when it comes to accessing or engaging with public services. For instance, to cite a tried and tested example that nevertheless makes the point, some Muslim women might not feel able to receive medical care, particularly gynaecological care, from a member of the opposite sex. For a primary care trust or a hospital trust not to deliver that service to them would not be discrimination, and would not therefore be dealt with under paragraphs (a) or (c). This is about equality of opportunity. Given that there are poorer ante-natal, post-natal and infant health outcomes for Muslim women now than for anyone else, would one not want the local authority or PCT to acknowledge that need and to ensure that it was met?

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

No, not all. How long have we listened?

There is a similar argument about opening swimming pools to women-only groups—Muslim women, for instance, who would not be happy swimming in scanty swimwear with men around. We would not want a special swimming  pool demanded by the Muslims, and then one for the Jews, one for the Catholics and one for the British Humanist Association. Instead, a special time could be designated when women could swim on their own, as often happens now. This requires local authorities, primary care trusts and all public authorities to think about the impact of their policies on people who have religious beliefs. It certainly does not mean separate services on demand, and it is fatuous to suggest that it will lead to balkanisation. Where there is evidence of need, we must ensure that public services are responsive to that need for the benefit of people who use the services. It will not lead to balkanisation, let alone the abolition of Christmas.

The hon. Member for Oxford, West and Abingdon wanted to know whether need involved an objective element. This is very straightforward. The duty is on the public authority, which will have to decide whether there is a need to be met and exercise due regard in making that decision. It will have to behave and determine the issue in an appropriate and proportionate way. Evidence will be required; it will not be possible for some fatuous or supposed religious organisation to suggest that it, too, should have something that other people have without any evidence at all. The hon. Gentleman will say that there must be equal provision for every strand of religion. He says it again and again—and again and again and again. That simply is not the case. We are talking about need. This is not a difficult provision to understand, and I do not know why it causes such a lot of anxiety. However, it does—and has done so about eight times now.

Another aspect to advancing equality opportunity is that of encouraging participation in public life. We want local authorities to think about how they can encourage Muslim women. I think that nine Muslim women are councillors in England and Wales. Local authorities would be encouraged to use the provision to ensure that they brought in more people. If we accepted amendment 249, we would return to a hierarchy of inequality that would bleed into the other limbs. For instance, if the current unfair patchwork of coverage survives, Jews and Sikhs would still be covered under the race strand, whereas Christians, Muslims and humanists would not.

There seems to be a sense among Opposition Members that gay people and religious people hate each other relentlessly all the time, that that happens throughout life, and that every day is full of perpetuated hatred between those groups. That is a wholly unrealistic position. We took a lot of evidence from witnesses from Stonewall, and the hon. Gentleman tried to prod them into saying that there were deficiencies in the Bill and that they were insufficiently protected as gay people. They repudiated that entirely and try as he might—several times—they simply would not have it. Stonewall’s “Living Together” report makes it clear that about 84 per cent. of people of faith do not think that homosexuality is morally unacceptable in all circumstances. Let us be more realistic with our submissions and they might be a bit shorter.

Amendment 49 would make explicit the concept of “due regard” by involving an additional element of ensuring a balance. We think that due regard, which is central to the operation of the duty, is better. It requires the public authority to take into account all relevant factors and arrive at a proportionate decision. Instead of requiring all that, the amendment would turn the  process into a simple balancing exercise that we would find unwelcome. Inherent in the concept of advancing good relations is the need to ensure that one part of the community is not unfairly favoured over another. One could not describe a public authority as fostering good relations if it had ridden roughshod in any way over one section of the community and unjustly prioritised another. There is already a concept of balance in the duty, and the legislation does not need this gloss. That would make it a less sophisticated process than the one that we feel is appropriate for all groups. We do not favour the amendment, although we understand why it was tabled.

Amendment 297 would require public authorities not to inhibit free expression when complying with a duty. Subsection (5) is clear about where the duty sits in relation to the law. It does not trump or override the law, but operates within its limits. A public authority will have to obey the law and ensure that it does not infringe the lawful rights of anyone, whether intentionally or otherwise. The Human Rights Act 1998 enshrined the right to freedom of expression in law. Although it is a qualified right, people are free to think and say what they like within the boundaries of the law.

There are powerful reasons why we need these provisions in the Bill. They will form the leverage that we use to transform the culture, and it is a pity that that is not evident to other Committee members.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful for the Minister’s words about amendment 297, in which she gave a clear defence of free speech and explained the duty for public authorities to protect it. That should send a message to universities in particular that no platform policies are acceptable. They should not infringe the right of lawful free speech, even for unpleasant organisations and individuals. That is especially true on campus when whom is deemed to be unacceptable is determined by some kangaroo court on the basis of who the National Union of Students or the local student union thinks should not be allowed to speak. Of course people are allowed to demonstrate. However, public authorities should not be involved in preventing people from speaking. They should allow people to speak, even if the police then listen carefully to what they say.

On amendment 249, I regret that I could not persuade the Minister to address the distinction, if there is one, between “disadvantages” in subsection (3)(a) and “needs” in subsection (3)(b). I accept her example about the importance of access to health services for hard-to-reach groups, some of which may share the protected characteristic of religion or might have poor access because of the manifestation of their religious beliefs. That puts them at a disadvantage and would automatically enable subsection (3)(a) to apply.

Amendment 249 would take out subsection (1)(b), which is the stem for the whole of subsection (3). I accept that it goes wider than just the question of needs. In respect of what a need is when it is not an established disadvantage, the Minister relied on the fact that local authorities and public authorities would have to determine whether there was a need that they ought to meet. As I said, my concern is about the expectation that needs will automatically be met. That causes a reciprocal expectation by public authorities that such needs, however unwarranted or however much they cause inefficiency—or what I have called balkanisation—ought to be met.

The assertion that Opposition Members—whether me or the hon. Member for Glasgow, East—think that there is widespread conflict between gay people and religious people is misplaced and creates a straw man. However, it is true that the nexus between religion and sexual orientation is being tested in case law. Another issue is the ability of employers to restrict the manifestation of religious belief in employment, irrespective of issues of sexual orientation. That is where the case law is. It is not unreasonable when debating the Bill to concentrate on where the problems are and not on where there is broad agreement.

Amendment 249 has not found favour. It might be too wide, so perhaps it would be more appropriate to table a narrower amendment at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 ordered to stand part of the Bill.