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Baroness Miller of Hendon: I have some sympathy with the noble Baroness over her Amendments Nos. 168 and 210. Like her, we are not happy with the word "belief" as it appears in Clause 45 and Clause 47. However, we prefer our solution, which we mention in a later amendment, because the definition in Schedule 1 of the Human Rights Act is rather vague, and although it says various things, it could not be described as a definition.
Lord Lester of Herne Hill: I always feel depressed when I say anything in which I disagree with the noble Baroness, Lady Turner of Camden, especially in view of where she is coming from on this issue, but I agree with the Joint Committee on Human Rights. In its report, it said that the definition did not need to be altered in the way suggested. It welcomed the definition of the inclusive terms in the Bill, which reflect the protection afforded to religion and belief under Article 9 of the European Convention, which has been quoted by the noble Baroness. It pointed out that it makes it clear that protection is not dependent on similarity of belief. That was in the sixteenth report for 200405, paragraph 38.
I agree, and although this is not in the amendment, I add that any attempt to try to define religion would create appalling problems, since those outside the definition would complain, and one would get into the vexed question of old religions, new religions, cults, and so on. For that reason, and with diffidence, I do not think that this amendment is needed.
Baroness Scotland of Asthal: First, I am grateful to my noble friend Lady Turner of Camden for putting
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forward Amendments Nos. 168 and 210. That has enabled us to discuss the definition of religion and belief, which we have introduced in Clause 45 and which, through Clause 77, will amend the definition currently contained in the Employment Equality (Religion or Belief) Regulations 2003. I recognise the expertise that my noble friend brings to this area as a former member of the EOC and as a vice president of the Humanist Association. Like the noble Lord, Lord Lester, I always find it difficult if I am about to disagree with her; but I am.
With regard to Amendments Nos. 168 and 210, the Human Rights Act 1998 does not define religion or belief, so the effect of the amendment would be to leave the definition to human rights case law. The courts already take into account case law when they are called upon to decide whether something is a religion or belief for the purposes of Part 2 of the Bill. They already do that in relation to the employment regulations on religion and belief and in relation to religiously aggravated offences in criminal law. We believe therefore that there would be nothing to be gained from the amendments. Indeed, explicitly referring to the Human Rights Act might exclude the courts from taking into account case law arising from the criminal offences.
It may be worth summarising what some of the key case law has provided. In X v UK in 1977, the main limitation on what constitutes a religion was that it must have a clear structure and belief system. In Campbell and Cosans v UK in 1982, "philosophical belief" was judged to be a belief that attained a certain level of cogency, seriousness, cohesion and importance that was worthy of respect in a democratic society and not incompatible with human dignity. In Baggs v Fudge from 2005the most recent caseit was shown that a belief in the political views of the BNP should not be considered a belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003.
It may also be worth reminding the Committee that a number of definitions exist in law in relation to religion and belief and that they reflect, to some extent, the different purposes that the laws are intended to have. In criminal law, the definition used is,
The same definition is used in relation to the Racial and Religious Hatred Bill, which is currently being considered in the other place. In the Charities Bill, the definition is worded in terms of belief in God.
What is, however, common with all those definitions is that none seeks to define what actual faiths or beliefs are covered by the law. That is left to the courts to decide, which is proper. We can see that there might be superficial attractions in seeking to define in the Bill what is or is not a religion or belief. It would help to ease concerns that some of the more outrageous beliefs might receive protection. However, that attraction is fairly superficial in nature.
We believe that we have taken the right approach. The courts are best placed to make decisions on these difficult matters, taking into account all the information that they
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will have before them. That approach has worked well with existing legislation and we hope that it will have the support of everyone in relation to the Bill. I understand why the noble Baroness, Lady Miller, prefers her own interpretation, but we think there may be difficulties ahead there too.
Baroness Turner of Camden: I thank my noble friend for that comprehensive answer. The briefing that I had from the British Humanist Association cites a number of cases in support of its case, including Campbell and Cosans v UK of 1982, which she cited. However, I note seriously what she said and also thank the noble Lord, Lord Lester, for his intervention. It is useful to have all this on record, and I am grateful to everybody who has participated, including the noble Baroness, Lady Miller. In the circumstances, I beg leave to withdraw the amendment.
The noble Baroness said: I note that both the Minister and the noble Lord, Lord Lester, found it difficult to disagree with the noble Baroness, Lady Turner. However, I have no doubt at all that the Minister and the noble Lord, Lord Lester, will have no difficulty in disagreeing with me. I shall speak to Amendments Nos. 169 and 211 together. They are identical and slightly modify the definition of "belief" where it appears in Clauses 45 and 77. As drafted, the two clauses define "belief" as,
It is, therefore, clear that, while it is true that every religious belief is based on some sort of philosophy, not every philosophy is religious. Marxism is a philosophy, as was national socialism. Those two examples alone should demonstrate the need to ensure that the sort of philosophy we wish to protect is a religious one.
My thesaurus provides a long list of non-religious philosophiesfrom stoicism to transcendentalism and dialectical materialism. I have many other examples, but I shall not bore the House with them. I have been told that there is a legal rule of interpretation called ejusdem generis, which roughly means that items in a general list should be construed as including only things of the same type. However, it is important that we should make it clear that when we speak of "philosophies" in the same breath as "religion", we mean religious philosophies, not political ones, or the theories, as my dictionary states, of
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a particular philosopher or, again, according to the dictionary, merely the theoretical basis of a branch of knowledge.
These amendments are not aimed at diminishing the two clauses, but are to tighten them by ensuring that they are not used by a person or group of people whose beliefs this Bill is not even remotely intended to protect.
I hope that the Governmentalthough I do not have much hope after listening to the Ministerwill accept these two entirely constructive amendments, entailing the addition of one short word of just seven letters. It simply makes the issue clear to all lay people who do not know the law. I beg to move.
Lord Lester of Herne Hill: I find it equally difficult ever to say anything in disagreement with the noble Baroness, Lady Miller of Hendon. In support of her amendment, it should be said that the Government thought she was correct regarding the Employment Equality (Religion or Belief) Regulations 2003, which defined "religion or belief", to mean any religion, religious belief or similar philosophical belief. At that time a number of us were a little upset about that. People like me, who might best be classified as a passionate, disbelieving Jewish agnostics, had difficulty with being classified as having a "similar" philosophical belief to that of a religious person.
That seemed strange and it is wrong that such regulations achieve exactly what the noble Baroness, Lady Miller, wants in the Bill. By forbidding discrimination based on religion or belief, it is important to cover those who have no belief and who are discriminated against because they have no belief; for instance, as agnostics, atheists and others. The Government have got it right in this definition, but wrong in the regulations. Somehow, the two need to be ironed out.
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