Mr.
Harper: The hon. Lady is making a point about creating a
differential. The provision is carried forward from the existing law. I
was interested in the proposed amendments, so I went back to the look
at the Sex Discrimination Act 1975. Some of the language in that Act
seems rather strange now. The Solicitor-General will correct me if I am
wrong, but the clear intention of that measure was to protect married
women who may be discriminated against, specifically in an employment
field because employers felt that they were not sufficiently committed.
Employers might, for example, discriminate because they thought that
women were going to have children. That was why the measure was
introduced. The Solicitor-General was saying that the evidence today is
that such discrimination does not exist widely if it exists at all.
However, the decision on introducing the
provision was finely balanced. The hon. Member for Hornsey and Wood
Green raised an important issue, but it shows how the world has changed
since some of the provisions were introduced. It is not a new
provision, but simply one that exists in law and is being carried
forward.
Lynne
Featherstone: I thank the hon. Gentleman for his
intervention. It is therefore interesting to ask this question: if the
intention of the original Act was to prevent discrimination against
women because they were married, why is there not more evidence of such
discrimination? I am surprised that there is not more evidence. For
example, Nicola Brewer, the outgoing chief executive of the Equality
and Human Rights Commission, has said that married women were being
discriminated against before they were even employed, because maternity
packages were reckoned to be so good.
The
Solicitor-General: A person can get pregnant without being
married, so is that not discrimination on the basis of sex? That is
very adequate coverage. May I tell the hon. Lady that the only bit of
evidence that we could find of prejudice or discrimination at all was
one case that showed that there were instances of discrimination when
an employer did not allow married people to work together, because that
might interfere with their commitment to the business? That is the only
example we could find.
Lynne
Featherstone: It is a bit like not being able to go out
with or date people in the same office, which often
happens.
John
Mason (Glasgow, East) (SNP): The hon. Lady was looking for
examples. Some years ago, I wanted to visit a Scottish island, but
there was no bed and breakfast accommodation for single people
whatever—I suppose because the establishments only had twin or
double rooms. I accepted that because it was a commercial decision.
They are quite small establishments and they cannot cater for
everybody, so I did not feel discriminated against, but is that an
example of such discrimination?
Lynne
Featherstone: When I was preparing for the debate on this
amendment, I wondered whether those sorts of issues would be dealt with
in this part of the Bill, but I was unsure whether marketing and sales
was a legitimate or justifiable way to go. There is an unfairness in
people having to pay a single supplement when they take a single room
in a hotel and a whole raft of similar things. What is the
Solicitor-General’s view?
The
Solicitor-General: That is not about marital status, but
about going on holiday alone, which is a difficult strand of
discrimination to protect someone against. We are having a whip-round
now to buy the hon. Member for Glasgow, East a
tent.
Lynne
Featherstone: I came to the same conclusion, which is why
I did not use such an example as an argument. It makes me slightly
uneasy to leave a differential
in relationship status in a Bill that is meant to bring things together,
but I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn. Clause
8 ordered to stand part of the
Bill.
Clause
9Race Question
proposed, That the clause stand part of the
Bill.
Dr.
Harris: I wish to raise two issues. First, the fact that
the Bill clearly extends the provisions to colour or nationality is to
be noted and welcomed. Secondly, however, why have the Government
chosen not to go down the path of including the question of descent? As
I understand it, the provisions in the original directive enable the
Government, if they so choose, to talk about discrimination on the
grounds of descent as part of racial discrimination. It is not clear
whether the Government have not taken that course for a specific reason
or whether they think that it is already covered.
There are
questions about whether we have sufficient coverage of discrimination
if the specifics of racial discrimination, including that on the basis
of someone’s descent, are not covered. There is clearly an
overlap into issues of genetics and so on, and questions about caste
discrimination would come under that. It would be helpful if the
Minister clarified the Government’s position. This is a
significant clause on race discrimination.
11.45
am
The
Solicitor-General: The hon. Gentleman suggested that this
is an extension, but I am not sure why he thinks that that is the case.
It troubles me, and I would be grateful if he would set his case out
further. This is not an extension of the definition; we have covered
discrimination on the basis of colour for a long time. All four of the
limbs—colour, nationality, ethnic and national origin—are
there, and always have been. I need to understand what he thinks has
been extended, so that I can answer him
appropriately.
Dr.
Harris: I am looking at my briefing again. As I understand
it, because the regulations with respect to the EU race discrimination
directive were introduced under section 2 of the European Communities
Act 1972, they could not go further than the provisions of
the directive. Therefore, when they were originally introduced, the new
regulations could not cover race discrimination complaints brought on
the grounds of colour and nationality. That means that for the new
definitions of indirect discrimination and harassment, the shift in the
burden of proof relating to the genuine occupational requirement
exception will apply only to discrimination on grounds of race, ethnic
or national origin, and not to colour or nationality.
That was the
previous position as I understood it, but I thought that it had been
dealt with effectively in primary legislation. There was primary
legislation, and the Government were not restricted—as they had
been—to implementing that directive through secondary
legislation. I hope that my understanding is correct—if it is
not, I will apologise.
The
Solicitor-General: The hon. Gentleman suggests that we
have not outlawed discrimination on the basis of colour before today,
which is an outrageous and bonkers suggestion. The
briefing—which I think the hon. Gentleman needs to read
again—states that we have changed where the burden of proof
lies. The directive separated colour and nationality from ethnic or
national origin, and put the burden of proof in tribunal proceedings on
one side for one group, and on the other side for another group.
Discrimination on the basis of colour and nationality, as the hon.
Gentleman knows, has been outlawed in this country for a generation.
There is no extension in the definition, which is what we are talking
about. When we come to talk about the burden of proof, I will explain
to the hon. Gentleman how it has been extended. The definition has not
changed.
Dr.
Harris: I was not proposing a probing amendment or talking
about the definition. I do not see why the Minister should consider it
bonkers and misunderstand my point, which is that the Bill fully
extends that protection in other areas, which previously we were not
able to do. I return to my main point about whether the Government have
a view on the question of descent being part of the definition of
race.
The
Solicitor-General: It is extraordinary that somebody who
appears to focus so closely on some arcane points of discrimination law
can suggest that this is an extension of cover in clause 9. It is not.
It is carried forward from the old legislation. I am very surprised.
However, to look at another issue, in our view descent is likely to be
part of ethnic or national origin. In due course, we will get to the
meat of the hon. Gentleman’s briefing note, and he will need to
find it again later in the
Bill.
Dr.
Harris: I am disappointed that the Minister refuses to
answer the question and resorts to a delaying tactic of criticism and
abuse. That is not necessary in a Committee where, so far, we have had
effective scrutiny and a good dialogue. She may see it as an
opportunity to show-boat and grandstand her great expertise, and we
recognise her experience as a lawyer. The question that I urge the
Minister to address is for what reason have the Government chosen not
to include descent in the definition of race under the clause? Does she
think that it is adequately protected otherwise? Is not extending the
clause in that way a policy decision made by the Minister, whose
responsibility is to steer the Bill through the
Committee?
The
Solicitor-General: I have already answered that
question.
Dr.
Harris: On a point of order, Mr. Benton. the
Minister says from a sedentary position that she has answered
it.
The
Chairman: The Minister contends that she has answered the
question. Does the hon. Gentleman have a further
question?
Dr.
Harris: We will have to look at the record to see whether
the point that I raised twice has been answered. That means that we may
have to come back to it at a later point. Clearly, however, there is
nothing more that I can do to elicit an answer on that
point. Question
put and agreed to.
Clause
9 accordingly ordered to stand part of the
Bill.
Clause
10Religion
or
belief
Dr.
Harris: I beg to move amendment 215, in clause 10,
page 7, line 23, at end
insert— ‘(4) The meaning of
religion or belief does not include whether, or the degree to which, a
person has one or more of another protected
characteristic.’. This
is to make sure that organisations or individuals can not use
exemptions based on religion or belief to discriminate on another
ground for example against persons whose lifestyle, because they are
gay or unmarried, is not consistent with orthodox practice of that
religion or
belief.
The
Chairman: With this it will be convenient to discuss
amendment 216, in
clause 10, page 7, line 23, at
end insert— ‘(4) The meaning
of religion or belief does not include the degree of support for
matters of public policy or for the policies of a political
party.’. This
is to make sure that organisations or individuals which are
quasi-political can not benefit from exemptions based on religion or
belief.
Dr.
Harris: The amendments cover different issues. They seek
to probe the extent to which the Government agree with the case law
that has emerged. Amendment 215 would clarify that
“The
meaning of religion or belief does not include whether, or the degree
to which, a person has one or more of another protected
characteristic.” There
are two other amendments on the amendment paper, which were not tabled
in time to be selected. They put it in better terms, and are in
relation to the protected characteristic of religion or belief, so that
a reference to a person’s religion or belief would not include
reference to that person’s other protected
characteristics. The
point about the amendment is to question whether the Government agree
that it is not acceptable for people to seek to use the opportunity,
which exists rightly, to discriminate on the grounds of religion in
certain matters such as employment where certain conditions are met, on
the basis that a criterion is set for religion, which is not met in the
definition of religion, because someone is gay, or, less
directly—although I think it goes to the heart of what
one’s sexual orientation is—because someone is having
sexual relations outside marriage. For example, someone may be having
sex with someone of the same gender and, by definition, that will
always be sex outside
marriage. We
have had assertions from people representing religious organisations
that they should be entitled to discriminate on the basis of sexual
orientation, although they point out that it is not on the basis of the
fact that a person is attracted to someone of the same gender, but on
the basis that they act on that attraction and are engaged in otherwise
lawful sexual relationships with someone of the same
gender. In
case law, we have had a number of judges who were very
clear.
Mr.
Harper: I am not trying to pick on the hon. Gentleman, but
he said that amendment 215 was not as brilliantly drafted as it might
have been. I sat here,
wishing to stop him before he got on to the specifics. Amendment 215
says:
“The
meaning of religion or belief does not include whether, or the degree
to which, a person has one or more of another protected
characteristic.” It
may be that I am particularly dense, but I do not have the faintest
idea what it means. Perhaps other members of the Committee do not
either. Will the hon. Gentleman explain what he is getting
at?
Dr.
Harris: I was going to through the example that I gave. It
may be argued by some people that someone cannot be of the religion,
criteria having been set on that, if they are gay. That is basically
what I am saying. For example, there is a provision in the Bill, which
I think we all support, whereby a religious test could be required for
some employment. The definition of religion is given in the Bill.
Prospective and actual employers might be under the impression that
they can say, “This person does not practise the right sort of
religion.” I do not want to name any particular religions,
because it gets invidious, but I fear that I may have to.
Let us take
Catholicism as an example—I do not say that this occurs, but one
can see how it might. Such an employer would say that someone has to be
a Catholic in order to work for them. That person might indeed be a
Catholic but, if they are gay, it could be the view of the employer
that they do not fulfil a religious criterion because orthodoxy in that
religion—Catholicism might not be a good example—cannot
include someone who is gay or, more frequently, expresses a sexual
orientation that by definition leads them to be outside the religion.
An amendment that we will come to later deals with that. So a potential
employer will say, as they have in briefings to this Committee, that
they do not seek to discriminate against people who are gay, but that
they want to be able to discriminate against people who have gay
sex.
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