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Sandra Gidley: The new clause was tabled partly to try to establish the Government's thinking. At this stage of Committee deliberations, after many accusations about the Opposition and inequalities in the Equality Bill, and after my hon. Friend the Member for Oxford, West and Abingdon was taken to task this morning for using the phrase ''hierarchy of inequalities'', it seems ironic that we should always have a counter-accusation.
I understand the difficulties with the third party, but it strikes me that there are probably many cases in which potential problems are highlighted and ignored—for example, a woman attendant who does not feel safe from harassment in a particular environment. That problem could be drawn to the employer's attention and knowingly not dealt with, because the employer knows that there is no redress. The new clause would have been helpful in such situations, but I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New clause 15
Employment Equality Regulations (amendment)
'In the Employment Equality (Religion or Belief) Regulations 2003 (S.I. 2003/1660), leave out regulation 3(2).'. —[Dr. Harris.]
Brought up, and read the First time.
Dr. Harris: I beg to move, That the clause be read a Second time.
The motion asks why no amendment has been made to the Employment Equality (Religion or Belief) Regulations 2003 to bring out what is considered to be the better approach to the issue in this Bill. Clause 43 has a definition of religion and belief that everyone considers appropriate, because it is aligned closely with the Human Rights Act. In clause 76, the Government propose that the old definition of
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religion and belief in the 2003 regulations should be amended to account for the new definition.
In clause 44 a new version of discrimination has been drawn up as the result of an amendment in the House of Lords, which effectively merged two sub-paragraphs into one:
''A person (''A'') discriminates against another (''B'') for the purposes of this Part if on grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treats others (in cases where there is no material difference in the relevant circumstances).''
Prior to that amendment, the wording was such that it appeared that if the religion was A's religion, it would be exempted.
The Government were right to make it clear that A's religion or belief would be covered, without necessarily conceding that that was the effect of the original wording, because the effect would apply whether or not the religion or belief was A's religion or belief, as long as the discrimination was on grounds of the religion or belief of B or any person except A. It does not matter whether it happens to be A's religion.
The 2003 regulations do not include the same definition. My new clause, which is by definition probing, was meant to ask whether the Government intend the same read-across. If not, why not? If yes, we would support it. Uniformity in this area of law is useful.
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On Tuesday we mentioned an area where the Government have chosen not to make the regulations match the provisions in the Bill, which was the test for an exception for continued discrimination or discrimination by a religious organisation, religious charity or faith school. The Government argued that that was different because the organisations were small and should have a threshold different from and much lower than the controversial exceptions in the regulations. There is no clear reason why the basic definition of discrimination should be different, and I hope that the Minister can define the Government's intention.
Meg Munn: New clause 15 would, as the hon. Gentleman said, amend the Employment Equality (Religion or Belief) Regulations 2003 by removing regulation 3(2), and I thank him for providing us with the opportunity to discuss the discriminator's religion or belief as defined in those regulations. The Government have already revised, in the other place, the definition of discrimination in what is now clause 44. It was never the Government's intention that the Bill should allow a person to discriminate against another of the same religion or belief, nor do we believe that that was the effect of the original provisions. Nevertheless, to put the issue beyond all doubt, we tabled amendments in the other place so that the position is completely clear.
The Bill does not enable a person to discriminate against another of the same religion or belief in the provision of goods, facilities and services. As the hon. Gentleman has no doubt seen, there is a link between how the issue of the discriminator's religion or belief is
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dealt with in regulation 3(2) and how it was dealt with in the definition of discrimination in the Bill as originally drafted. The question, as he has rightly pointed out, is whether, having revised the Bill to achieve added clarity, we should also revise the regulations.
Regulation 3(2) makes it clear that the discriminator's religion or belief should not be a factor in considering whether discrimination has occurred in the area of employment or vocational training. However, I recognise that some have argued that regulation 3(2) may create a loophole whereby an employer, person A, could discriminate against someone else, person B, if that person was of the same religion but not, in the view of person A, properly observant. I can assure the Committee that it is not the intention or the effect of the regulation to allow discrimination in such cases.
A person who discriminates against any person because they do not share their beliefs would be covered by the regulations, as they cover belief as well as lack of belief. That means that person B would be protected if they did not share the same beliefs as person A, even within the same religion. In other words, it is the religion or belief of person B, not of person A, that counts. I am starting to wonder whether we should perhaps be using some sort of flow-chart.
Dr. Harris: I am following the Minister.
Meg Munn: I commend the hon. Gentleman on his attention. To give an example, an employer who was a Muslim could not deny another, more secular Muslim employment on the grounds that they were not religious enough. The religion or belief regulations have been in effect since December 2003 and are working effectively. There is no evidence to suggest confusion or that regulation 3(2) is being used as a loophole to allow people to discriminate against others of the same religion. That said, I recognise the concern, and the Government have already changed the Bill to make the position clearer. Given that we are moving towards the end of our consideration and that I have given way on very little, and having listened to the points raised today, I will take the issue away and have another look at it. I hope that, on that basis, the hon. Gentleman is content to withdraw the motion.
Dr. Harris: We should welcome two things. First, the Minister has demonstrated an ability to tackle the issues in part 2—a pleasure previously restricted to her colleague, the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins). From that brief excerpt, she can see how much fun that was, and she too now has a good mastery of part 2.
Secondly, and more importantly, I am pleased that the Minister sees the point. As I think I made clear, I was not seeking to claim that the Government ever felt it would be right to discriminate in the way that some people might think was possible given the loophole. I am happy to assure her of that and I am grateful for her agreeing to take the issue away to see whether—for
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the sake of consistency, if nothing else—it would be wise to make the relevant changes. I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
The Chairman: If the hon. Member for Bath (Mr. Foster) were present, he would now be sending a postcard to his mother. Before we come to new clause 16, I remind the Committee—my memory is not very long, but it does at least go back to Tuesday afternoon—that we had a substantial debate on most of the issues arising from the new clause and agreed to confine our comments strictly to matters of guidance. If the hon. Member for Oxford, West and Abingdon wants to move the new clause formally, listen to the Minister and then respond, that is entirely up to him.
New clause 16
Guidance on application of prohibition in relation to school transport
'(1) The Secretary of State shall issue guidance under this section setting out how school transport under sections 50(2)(b), 50(3)(b) and 51(4)(k) and (v) shall be provided.
(2) Guidance issued under subsection (1) shall have particular regard to the duty not to discriminate on the grounds of religion or belief and to carry out public functions with due regard to the Human Rights Act 1998.'. —[Dr. Harris.]
Brought up, and read the First time.
Dr. Harris: I beg to move, That the clause be read a Second time.
I shall indeed talk about guidance and I am conscious of the fact that we do not want to rehearse the principles of non-discrimination. In reading from the reports on guidance by the previous Joint Committee on Human Rights and the Education and Skills Committee, therefore, I shall seek to be brief and to keep strictly to the issue. The point that I seek to make with the new clause is that the current guidance is unsatisfactory and has been found to be so by both those Committees. If the Minister cannot assure me that guidance will be expedited to deal with the point, I fear that there will be continued discrimination.
I shall not go into this issue, but, as I said previously, there is discrimination against the non-religious on the basis that they are not provided with the same transport—to go the extra mile, as it were. The law on the issue is in section 509 of the Education Act 1996, which permits local education authorities to discriminate on the basis of religion or belief.
The current Government guidance on school transport takes the form of a departmental circular dated 21 January 1994. Paragraphs 29 to 31 deal specifically with transport to denominational schools and colleges. Those paragraphs are highly relevant and I shall explain what they say, because I want to argue that the guidance is unsatisfactory. Paragraph 29 says:
''Many LEAs exercise the discretion afforded by section 55 [Education Act 1944]''—
now section 509 of the 1996 Act—
''to provide free transport or assistance with fares for pupils or students who attend the nearest school or college of their parents' religious denomination, even though they could have attended a non-denominational institution nearer home.''
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Paragraph 30 continues:
''From 1 October 1993, section 55(3) was amended by paragraph 15 of Schedule 19 to the Education Act 1993. In considering whether or not transport is necessary—and therefore should be free—under section 55(1), LEAs must have regard, in the exercise of their discretion, to all relevant factors. As amended, section 55(3) provides that LEAs shall have regard to (amongst other things) not only the age of the child or young person and the nature of his route to school or college, but also 'to any wish of his parent for him to be provided with education at a school or institution in which the religious education provided is that of the religion or denomination to which his parent adheres.' Thus while Parliament has continued to leave LEAs discretion in their assessment of this factor, it has made explicit the requirement to consider it.''
Paragraph 31 states:
''The Secretary of State hopes that LEAs will continue to think it right not to disturb well-established arrangements of the kind referred to in paragraph 29, some of which have been associated with a local agreement or understanding about the siting of denominational schools. He continues to attach importance to the preservation of the opportunity to choose a school or college in accordance with religious convictions.''
The problem is that the Joint Committee on Human Rights report on the draft School Transport Bill—the 17th report of the session 2003–04—called for the guidance, which was then in the guise of the draft prospectus on school travel schemes, issued by the DFES, to be amended, as it had recommended that the extant guidance be amended, because it referred only to pupils travelling to denominational schools. It was pleasing that the Government amended the draft prospectus when they formally introduced that Bill.
In the 20th report of the session 2003–04, the Joint Committee on Human Rights also recommended, notwithstanding the then impending introduction of the School Transport Bill and a more satisfactory revised prospectus, that the extant guidance be amended to ensure that it was right. The report referred at paragraph 6.11 to the key recommendation that the Government need to address:
''In our view these paragraphs in the current guidance on school transport are now positively misleading for LEAs in light of the Government's welcome acceptance . . . that free or subsidised school transport must be provided without discrimination on grounds of religion or belief . . . We cannot see any reason for not making the position equally clear to LEAs by amending the current guidance on school transport to the same effect. Unless it is made clear, we think there is a significant risk of LEAs being misled by the guidance into adopting or maintaining discriminatory policies and practices, and of the current guidance itself being subjected to legal challenge on the ground that it is not an accurate statement of the legal position.''
It continued in paragraph 6.12 with a short recommendation:
''We therefore recommend that the DfES amend the guidance contained in circular letter 21 January 1994 so as to include specific guidance on non-discrimination''.
That has not happened, and there was no Government response to the 20th report. That issue was picked up by the Education and Skills Committee in its report on the draft School Transport Bill, which said something similar at paragraph 66:
''A parent who expresses a strong philosophical view that a denominational education would not be appropriate for their child is in a similar legal position to one who expresses a strong preference for denominational education. Guidance issued to LEAs should clarify that different treatment in this case could amount to discrimination . . . In order to reduce the potential for discriminatory practices, and to clarify the legal situation under the Human Rights Act, guidance to LEAs must make clear that where transport arrangements exist to support parents'
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denominational preferences, they must also cater for strongly held philosophical preferences.''
Finally, paragraph 67 stated:
''The human rights implications of school travel schemes are complex and we have found evidence of existing confusion over legal obligations.''
It is important to note that another Select Committee considered the issue and found evidence of problems, so we should add that it is important that evidence be shown, otherwise the argument is purely theoretical.
The report continues:
''In this context, the guidance given to LEAs in the draft Prospectus is woefully inadequate. It is unacceptable simply to state that local authorities should take legal advice before submitting their applications. The Government should provide clearer guidance to LEAs on those school transport practices which it considers would be discriminatory, particularly as the Secretary of State could be subject to legal action for approving any discriminatory scheme. The Government should pay heed to the recommendations of the Joint Committee on Human Rights on the draft Bill when drawing up this guidance.''
The School Transport Bill did not complete its passage, so it was never tested under scrutiny. The problem, therefore, remains. Meanwhile, the 20th report did not receive a Government response, perhaps because we ran out of parliamentary time.
The fact that the problem still exists is shown by the explanatory notes. I dealt with them on Tuesday, so I shall not repeat the argument, but they continue to be positively misleading. In light of what I have said, I hope the Government will recognise that there is a problem with the extant guidance. Unless they can show evidence that problems are not caused by that guidance, which would contradict the Education and Skills Committee's view that there are problems, something must be done now, as well as in relation to the Bill.
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The Joint Committee on Human Rights has raised this concern three times. We have not had a report on this Bill, so it remains to be seen whether the concern remains. I am not saying that the problem is being repeated, although it may well be if the Government are being consistent. Even before consideration of the Bill, the Joint Committee called—three times—for adequate guidance to ensure that there is not discrimination against non-religious parents of the sort that appears to exist at present, and that is encouraged, albeit unintentionally, by the Government's current guidance.
I hope that the Minister can offer reassurance on this issue. The Government's pronouncements will be examined closely by people who are suffering from what they consider discrimination. They might be persuaded not to bring legal action if they receive a satisfactory assurance that the Government are aware of the problem and are going to tackle it.
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