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Standing Committee A
The Committee consisted of the following Members:
Chairmen:
Mr. Roger Gale, †Janet Anderson
†Baird, Vera (Redcar) (Lab)
†Barlow, Ms Celia (Hove) (Lab)
†Blackman, Liz (Erewash) (Lab)
†Brokenshire, James (Hornchurch) (Con)
†Brown, Lyn (West Ham) (Lab)
Campbell, Mr. Gregory (East Londonderry) (DUP)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
†Evennett, Mr. David (Bexleyheath and Crayford) (Con)
†Follett, Barbara (Stevenage) (Lab)
†Gidley, Sandra (Romsey) (LD)
†Goggins, Paul (Parliamentary Under-Secretary of State for the Home Department)
†Grieve, Mr. Dominic (Beaconsfield) (Con)
†Harris, Dr. Evan (Oxford, West and Abingdon) (LD)
†James, Mrs. Siân C. (Swansea, East) (Lab)
†Laing, Mrs. Eleanor (Epping Forest) (Con)
†McCarthy-Fry, Sarah (Portsmouth, North) (Lab)
†Miller, Mrs. Maria (Basingstoke) (Con)
†Munn, Meg (Parliamentary Under-Secretary of State for Trade and Industry)
†Seabeck, Alison (Plymouth, Devonport) (Lab)
†Ussher, Kitty (Burnley) (Lab)
Williams, Hywel (Caernarfon) (PC)
Geoffrey Farrar, Emily Commander, Committee Clerks
† attended the Committee
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Tuesday 6 December 2005
(Morning)
[Janet Anderson in the Chair]
Clause 43
Religion and belief
Question proposed, That the clause stand part of the Bill.
10.30 am
Mr. Dominic Grieve (Beaconsfield) (Con): I welcome the Minister, who has been a good companion during the discussion of many a Bill in these Committee Rooms over the past few years. In the course of this morning, and probably this afternoon, when we come to consider the question of discrimination on the grounds of religion, I hope to provide him with a reassurance that most of the amendments are of a probing nature.
Although no amendments have been tabled to the clause, it is worth pointing out that most of the amendments that follow focus on the question of differentiating—if there is a difference to be found—between religion and religious belief, and belief. With that in mind, I do not intend to take up more of the Committee’s time on this clause. It may even be necessary, depending on the answers that I get from the Minister in the course of subsequent debates, to come back to clause 43 on Report if I am not happy with the definitions provided.
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): It is very welcome to see you in the Chair, Mrs. Anderson. I do not think that I have been a Minister under your chairpersonship before. I look forward to that, as indeed I look forward to further probing from the hon. Member for Beaconsfield (Mr. Grieve) and, no doubt, probing and other remarks and comments from my hon. Friends. I do not wish to detain the Committee on this clause, although, as the hon. Gentleman suggests, it is at the heart of all the debates that we are likely to have over the succeeding Committee sittings. The definition of religion that we have adopted is necessarily broad. It accords with article 9 of the European convention on human rights. I look forward to further discussions on the implications of the definitions that we have adopted as our proceedings unfold.
Question put and agreed to.
Clause 43 ordered to stand part of the Bill.
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Clause 44
Discrimination
Mr. Grieve: I beg to move amendment No. 97, in clause 44, page 26, line 25, leave out ‘or belief’.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 98, in clause 44, page 26, line 29, leave out ‘or belief’.
No. 99, in clause 44, page 26, line 30, leave out ‘or belief’.
No. 100, in clause 44, page 26, line 34, leave out ‘or belief’.
No. 102, in clause 44, page 26, line 35, leave out ‘or belief’.
No. 103, in clause 44, page 26, line 39, leave out ‘or belief’.
No. 104, in clause 44, page 26, line 42, leave out ‘or belief’.
Mr. Grieve: I have to make a confession to the Committee: I went through the Bill at random and simply decided to delete references to the words “or belief” in the text. I did that because I wanted to initiate a debate—in which I hope the Minister can help the Committee—on what the Bill is saying. I appreciate that when one looks back at clause 43, one sees that religion is defined as “any religion” and belief as
“any religious or philosophical belief”,
but it seems that what underpins the legislation—and the reason the provision has been included—is the desire to prevent discrimination on the grounds of a person’s religion or religious belief. At least, we are talking about something that centres on somebody’s belief, or lack of it, in a deity and matters associated with it.
The difficulty with clause 44 is that it seems, according to one reading of it, that the extent of the discrimination covered goes far beyond religious belief or indeed a philosophical belief centred on a deity or a lack of a deity. Is not the expression “philosophical belief” so wide that it would have to cover, for example, somebody’s political beliefs? If somebody believed that all property was theft, would they not be covered by the use of the word “belief” in the clause? Another example would be if somebody believed that men were not all born equal and that there were differences and inherent inequalities based on people’s race or other characteristics. Would that belief be covered by the use of the word “belief” in the clause?
There is a serious issue. We discussed this matter in the context of religious hatred. Many people think that there is an entitlement to discriminate against people who hold certain sorts of obnoxious views. If those views relate to a deity or to a lack of religion, I can see the logic in why that should be covered. However, if this clause extends that provision, and we say, “You can’t discriminate for the purposes of this Act,” which goes on to cover goods, facilities and services and other things, “because you dislike a person’s beliefs, which
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may in fact be of a very practical kind,” we must ask ourselves whether that is what Parliament should be doing.
The Minister, in answering the brief points I made about clause 43, said that the reason the definition was drafted to comply with definitions in the European convention on human rights. I wonder whether that is the case, because the belief systems with which we are dealing must relate to religion. Religion or the lack of it is difficult to define. It is about a person’s view of the universe in which he is living—whether there is a god, a hereafter and so on. I wait for reassurance from the Minister.
Are we not defining belief so that it extends to anything in which a person happens to believe? Let us take some practical examples. If a Jewish lady running a hotel or boarding house knew that the people coming along believed that Jews were untermenschen—a lower form of life—should she be required to admit them to her establishment? If somebody was known to believe that all property was theft, it might reasonably be supposed that people might be a bit wary about letting them into their premises, whether it is a hotel, boarding house or even a shop. They might think that shoplifting was about to take place.
We must address the practical issue. The Minister may be able to provide me with some reassurance, and I wait to hear from him; but I find it hard to believe that “belief” needs to be quite so widely drawn to give effect to what the Government intend, in terms of protecting people’s religion or lack of it. I hope that we may be able to focus our debate on that.
Paul Goggins: I am grateful to the hon. Gentleman for at least exposing to debate an important issue about underpinning this aspect of the Bill—the difference, and the complementarity, between religion and belief. His amendments would strike out the word “belief” from the Bill wherever it occurs. He must have had an amusing time going through to find out every example of where “belief” occurs.
To limit the provisions and protections only to those whose beliefs are aligned to an organised religion would be an unfair restriction. Those whose beliefs are equally strongly held but more philosophical—for example, humanists—should also be protected. The amendments would mean that a person with strongly held religious beliefs could lawfully discriminate against another person simply because that other person’s beliefs were not religious or associated with an organised religion. There are many in our society who hold no formal religious beliefs—atheists, humanists and so on—and whose belief structure actively rejects religion in any guise or form. It would be wrong for such people to be exposed to discrimination, and they should have the equal protection of the law.
Although philosophical belief takes us wider than organised religion, it is not limitless. The hon. Gentleman and I and other members of the Committee discussed those issues at great length in considering the Racial and Religious Hatred Bill. We made it clear that the courts determine what religion is. We know from case law that religion has to be consistent with
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human dignity; it must have a cogency, seriousness and sense of cohesion about a particular series and set of beliefs. We would expect a philosophical belief to betray the same hallmarks, although it does not revolve around belief in a particular deity.
As I said, then, philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party, the point raised by the hon. Gentleman. We know that because of the case in April this year of Baggs v. Fudge, in which a member of the British National party sought to challenge the refusal of an organisation to interview him for a job under the Employment Equality (Religion or Belief) Regulations 2003, which incorporate wording about “philosophical belief” similar to that in the Bill. That individual’s argument, that his support for the BNP constituted a philosophical belief, was thoroughly rejected by the tribunal, so there is no case to suggest that any such political belief would qualify as a religion or belief under the Bill. We are not making up the provisions on the spur of the moment; as I said, there is a precedent for them in the 2003 regulations.
Mr. Grieve: I can understand the rationale in Baggs v. Fudge, which concerned an adherence to a political party, as I understand it. That seems to me to be capable of being distinguished from an adherence to a particular philosophical belief. There may be no such difference, but the Minister may understand why I remain slightly troubled by this point. It is one thing to say, “We refused to interview him because he was a member of the BNP” and another to say, “We refused to interview him because we knew that he had a belief in white supremacy”. Maybe there is no distinction between those two statements, but I see a capacity for one. I wonder whether we are in danger of opening a door to people to make such arguments.
Paul Goggins: Often those two things, a particular belief and association with an organisation, are inextricably linked. In the end it will always be for the court, the employment tribunal or other judicial setting to determine whether the provisions of a particular employment law are relevant to a particular case. Our job here is to set out in legislation the overall provisions, and that we do, in a way that does not give limitless extent to the concept of philosophical belief, but ensures that it is consistent with the hallmarks of religious belief, such as cogency, which I quoted earlier.
The hon. Gentleman tempted me into the boarding house argument. I suspect that we will discuss boarding houses later. My clear view, which will no doubt be rehearsed later, is that, where somebody operates a boarding house, they are not in a position, nor should they be, to act in a discriminatory way.
Dr. Evan Harris (Oxford, West and Abingdon) (LD): I had not intended to contribute to the debate, but having heard the Minister I rise to endorse what he said and to put a couple of points to the hon. Member for Beaconsfield.
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I did not hear the hon. Gentleman deal with this matter in speaking to the amendments. Does he feel that the provision, as he would amend it, would capture those who have non-theistic beliefs that are their basis for ethical behaviour? That is somewhat different from belief in a political party or a football team. Does he feel, as, for example, the British Humanist Association does, that his amendments would undermine that position?
In its briefing to me, the association is keen to ensure that the Committee resists the amendments. It considers that it is wrong to classify non-religious beliefs as religious, and in a way it is nonsensical to do so. That is why the words “or belief” are so important. I am sure that we will come back to this point later, but I hope that the hon. Gentleman recognises that there are instances of people without religious beliefs being discriminated against in the delivery of public services. We will no doubt discuss school transport.
The hon. Gentleman will be aware that in the Army chaplains are provided for those who believe in the afterlife, but there is no equivalent service for those who believe that the life that they are putting on the line is the only one, although they may have a similar need for counselling.
10.45 am
I heard what the hon. Gentleman said and agree with his points about religious hatred, but I say to him that when we are dealing with discrimination on the basis of religion there must be an alternative approach that deals with belief. Because of his belief and learned status, the hon. Gentleman will be aware of case law in this area which interprets belief narrowly and not vacuously. If he could cite some case law in which he believes that interpretation went too far, that would be of interest to us all and would give us pause. However, as the Minister said, case law has been able to make a clear distinction between beliefs of a philosophical nature, including non-theistic beliefs and humanism, and other beliefs to which he rightly drew our attention. He wants to be clear that the Bill does not give protection to such beliefs. Obviously, we would not want the Bill to spill over into protection against discrimination on the basis of, for example, political beliefs. Where would it end? There is a strong case for keeping the wording as it is.
Mr. Grieve: I am grateful to the hon. Gentleman for providing some reassurance about the British Humanist Association. These are probing amendments. I find that when Bills are in Committee I am rung up by all sorts of people who express horror at amendments I have tabled. The Christian Institute was on to me last week expressing anxiety about some of the amendments that we will come to later. I had to point out politely that they are probing amendments designed to stimulate debate.
The hon. Gentleman made some good points. I want to make one thing clear: it was never and would never be my intention to remove from humanists protection concerning their beliefs. I fully acknowledge that the
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rather provocative way in which I tabled the amendments might have that unintended consequence, which is why I intended, having listened to the debate, to go away and think further about whether anything else needed to be done to the clauses.
Dr. Harris: I should have said that when speaking to the British Humanist Association I pointed out that I was certain that these were probing amendments, and the association understood that. It looks forward to the hon. Gentleman’s support on other parts of the Bill, and he can rest assured that its view is that he is not seeking to undermine protection for humanists.
Mr. Grieve: I am glad to hear that.
So far as my anxieties are concerned, it is very nice to have judges who interpret the law, who interpret words and who do so narrowly. One difficulty, and this should not allow Parliament to abdicate its responsibilities in the matter, is that we play around with words in statute. On one showing, and giving the words here their ordinary English meaning, it would be possible for a future judicial interpretation to widen the scope of what constitutes a belief in a way that no member of the Committee wants.
That anxiety may be far-fetched, but it exists and Parliament should not simply give up searching for better ways of expressing what we are trying to do. I still have in the back of my mind the slight reservation that there is a way of finding a better definition of the sort of beliefs we want to cover here, but I certainly do not have the formula at the moment. I have listened carefully to what the Minister said and, as usual, he was reassuring. I thank him and the hon. Member for Oxford, West and Abingdon (Dr. Harris) for our discussion, and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mr. Grieve: I beg to move amendment No. 105, in clause 44, page 26, line 41, leave out from ‘justify’ to end of line 42.
The Chairman: With this it will be convenient to discuss the following amendments:
No. 106, in clause 44, page 27, line 14, leave out subsection (5).
No. 107, in clause 44, page 27, line 15, leave out “not in good faith,”.
Mr. Grieve: We come on to discrimination. Subsection (3) states:
“A person (“A”) discriminates against another (“B”) for the purposes of this Part if A applies to B a provision, criterion or practice”
and goes on to provide a list of what those are. Paragraph (d) refers to a provision, criterion or practice
“which A cannot reasonably justify by reference to matters other than B’s religion or belief.”
I wondered whether the second half of the sentence was necessary in the overall context of the clause, which is why my amendment would take it out and leave
“which A cannot reasonably justify”.
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In doing so, I was again being slightly provocative because that allows scope to ask whether there might be justifiable reasons relating to religion or belief which would allow discrimination to take place. That brings us back to something I touched on earlier, which was discussed during consideration of the Racial and Religious Hatred Bill. Some people’s religion or belief may be extremely unpleasant or obnoxious. Could that provide a possible justification? That takes us into the areas of discrimination that are intended to be covered in this part of the Bill.
The other two amendments relate to the latter part of the clause, subsections (4) and (5). Subsection (4) states:
“A person (“A”) discriminates against another (“B”) if A treats B less favourably than he treats or would treat another and does so by reason of the fact that, or by reason of A’s knowledge or suspicion that, B . . . has brought . . . or intends to bring, proceedings under this Part”.
It covers somebody who is discriminated against on the basis that they are making a complaint. Subsection (5) provides a saving clause, stating:
“Subsection (4) does not apply where A’s treatment of B relates to B’s making or intending to make, not in good faith, a false allegation.”
That puzzled me a little. Let us say that an employer sees that someone is behaving badly and decides to discipline him. The employee says that he is being discriminated against on the grounds of his religion. The employer believes that allegation to be false, and wishes to continue to discriminate against him; indeed, he probably wants to sack him and get him off the premises.
Subsection (5) seems to imply that a false allegation can be made, but as long as it is made in good faith, the person making it is entitled to the continuing protection of the clause. I find that a little odd. An allegation is either false or it is not. How on earth can someone who is facing up to dealing with an employee who is committing gross misbehaviour and who he wants to get rid of form a conclusion? The employee has made a series of the most dreadful false allegations about being discriminated against on the basis of religion or belief, but the employer has to consider whether the allegation was made in good faith; otherwise, if the employee is able subsequently to show that the allegation was made in good faith even though it was false, the employer would still be discriminating against him.
I would be grateful if the Minister would explain how that will work in practice. If he thinks that it might not work well, that might be a good reason to take out the four words in the amendment.
Dr. Harris: The hon. Gentleman continues to do the Committee a service, as he has done for other Committees, by raising important issues and being brief about doing so. I disagree with amendment No. 105, but I see what he is getting at.
Amendment No. 107 highlights an interesting point. It will be hard to tell whether an allegation is false before that has been determined, and as the subsection refers to the intention to make a false allegation, we are not even considering a situation in which an allegation has been made. The question is whether it would be
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difficult, given that one is already in double conditionality—determining whether there was an intention to make an allegation and whether it was going to be, or was, a false one at that stage—to make the third judgment about whether the allegation was made in good faith.
Alison Seabeck (Plymouth, Devonport) (Lab): I share the hon. Gentleman’s confusion about “in good faith” and I hope that the Minister will be able to explain whether there is some legal basis for the use of the term; we need to identify what is good faith.
Dr. Harris: I am grateful to the hon. Lady for recognising that it is not just the hon. Member for Beaconsfield who seeks to question the term.
Presumably, there will be a test as to whether something was in good faith and whether an allegation of discrimination under part 2 was reasonable in judging it to be not in good faith, reasonable in judging that there was an intention, and reasonable in judging that that it was a false allegation. The key question for the Minister is whether the words are vested in other anti-discrimination legislation, perhaps in the field of race, and whether, therefore, there is case history that shows whether the words have caused confusion. It is unusual, given the long history of such legislation, for something brand new to have come this far and got through the House of Lords. Subsection (5) is difficult to understand without clarification, and I hope that the Minister will take the opportunity to make it clear what is intended.
Paul Goggins: As the Committee has already noted, the provisions allow for indirect discrimination to be lawful only where the overriding reason for an action is unrelated to a person’s religion or belief. For example, financial considerations might mean that a small business, perhaps a child-minding service, is not in a position to provide kosher food. That would be a function of the fact that it was a small business with limited financial opportunities, not to do with the religious belief of its potential customers. It would be indirect discrimination, but it would justifiable because it had occurred as a consequence of financial and practical considerations, and there was no intention to discriminate against an individual or a potential customer.
The hon. Member for Beaconsfield acknowledges that his amendment might be provocative. I do not envisage any circumstances in which we could justify deliberate indirect discrimination targeted at a particular individual. I accept that the amendment allows for a situation in which the action might be reasonably justified, but we are getting into the difficult territory of subjective judgments about what is reasonably justified and what is not. I hope that the hon. Gentleman, who agrees that it is provocative and probing, has already realised that he might want to withdraw the amendment.
Most of the Committee’s attention has been drawn to amendments Nos. 106 and 107 and potential malicious claims of discrimination. My hon. Friend the Member for Plymouth, Devonport (Alison Seabeck) and the hon. Member for Oxford, West and
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Abingdon have asked for further clarification. The proposition is that a claim is either right or wrong. That is too simple. A claim might be malicious, and then right or wrong. The situation is more complex than the hon. Member for Beaconsfield at first indicated.
Mr. Grieve: I am very mindful of that and, from my memory of employment law, I can tell how the clause originated. It is possible for somebody to bring in good faith a claim that turns out not to have been justified. I should not regard it provision for that as improper. Somebody may believe that they have a justifiable grievance, and they may want to have it considered by a tribunal. However, that is slightly different from a false allegation. I find extremely difficult the juxtaposition of a false allegation with an allegation made in good faith.
When one focuses on what the Bill intends to achieve, one sees that we are talking not of the esoteric complexities of employment law, but of precise allegations. If an allegation is false and not mistaken, by its very nature, giving the words their ordinary English meaning, it cannot have been brought in good faith at all. That is why I find the juxtaposition of the two terms so odd. That was the point that I was trying to make.
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