Equality Bill [Lords]

Public Bill Committee, 6 December 2005.

Equality Bill [Lords] - Standing Committee A

Clause 43 - Religion and belief

Dominic Grieve (Conservative, Beaconsfield)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

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.

Clause 44 - Discrimination

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 97, in clause 44, page 26, line 25, leave out ‘or belief’.

Janet Anderson (Labour, Rossendale and Darwen)

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’.

Dominic Grieve (Conservative, Beaconsfield)

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 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 (Labour, Wythenshawe and Sale East)

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 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.

Dominic Grieve (Conservative, Beaconsfield)

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 (Labour, Wythenshawe and Sale East)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

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.

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.

Dominic Grieve (Conservative, Beaconsfield)

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 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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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.

Dominic Grieve (Conservative, Beaconsfield)

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.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 105, in clause 44, page 26, line 41, leave out from ‘justify’ to end of line 42.

Janet Anderson (Labour, Rossendale and Darwen)

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,”.

Dominic Grieve (Conservative, Beaconsfield)

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”.

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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 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 (Labour, Plymouth, Devonport)

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.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

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 (Labour, Wythenshawe and Sale East)

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 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.

Dominic Grieve (Conservative, Beaconsfield)

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.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am sure that the hon. Gentleman will appreciate that the circumstances we envisage are the making of vexatious claims or unjustifiable repeat claims. That is the kind of malicious conduct that we seek to cover. We do not want something that is so defined that it inhibits and discourages people from bringing claims because, from the outset, it may not be 100 per cent. certain that their claim and case can be proved. We have employment tribunals and a judicial process in which judgments can be made about whether an allegation is proven.

We are seeking to rule out situations in which something is clearly malicious. For example, if I were a shopkeeper and somebody continually went around the neighbourhood claiming that I gave a worse service to a particular religious group, it would be utterly ridiculous for me not to be able to discriminate against that person by refusing to serve them whenever they came into my shop. We seek to cover that conduct, and we want to do so in a way that still encourages people to bring claims when they feel that they are justified. The claims will still need to be determined through the due process that we operate within employment legislation and race relations legislation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for coming up with an example, because it is always helpful; I think. However, whose good faith is it? In that example, the person may have had the information on what they consider to be good authority, and they may have had reasonable grounds to think that the action was taking place. They are not acting in bad faith by propagating serious allegations; perhaps they have attempted to establish the truth and have not received a response. Would the Minister say that the shopkeeper was best advised to wait until the outcome of the allegation before refusing service, or is that just a chance that one takes under this legislation?

Paul Goggins (Labour, Wythenshawe and Sale East)

Of course, in the end all matters are determined in a court of law; but if I were that shopkeeper I should have grounds to justify my conduct. The conduct of someone who went around the neighbourhood spreading malicious rumours and gossip that I was discriminating unfairly against people when I was not would be the grounds on which I could defend my action of discrimination against that individual by refusing to serve them in my shop.

It is possible that I should have to defend the action in court, but I should have a defence. That is the point. Even if people were slightly uncertain, that defence should still mean that people could bring forward a complaint about somebody’s conduct. We want people to come forward with complaints when there may be grounds to believe that unfair discrimination is taking place. It is important to have a fallback position on which people can exert a form of discrimination if they feel that others are spreading malicious gossip about them.

I hope that my explanation, however poor or good, reassures the Committee. The system is the same that has operated in race relations legislation and in other forms of discrimination. It is tried and tested, meaning that we can deal with the malicious person and encourage people who have justifiable grounds to bring a complaint that needs to be tested through a judicial or tribunal process. I hope that in light of that explanation, the hon. Member for Beaconsfield will reconsider and withdraw his amendment.

Dominic Grieve (Conservative, Beaconsfield)

So far as amendment No. 105 is concerned, I am grateful for the Minister’s comments and agree with them. It was a probing amendment and I do not wish to press it to a Division.

So far as amendment No. 107 is concerned, I continue to have reservations about the wording of the legislation. It is not the first time in Committee that we have examined wording that features in earlier legislation and found it difficult to understand why a particular form of words was used. One of the difficulties is that once wording gets into legislation it tends to stay there for ever, until Parliament is bold enough to try to do something better.

The Minister will not recall this—mercifully so, I suspect he will feel—but I remember doing a piece of Northern Ireland legislation under which the playing of musical or other instruments was banned. When I inquired what another instrument was, none of the civil servants had the slightest clue what was being referred to. We got that deleted, but I think that it had featured in legislation going back over 20 years.

This provision has slightly the same flavour. Subsection (5) states:

“intending to make, not in good faith, a false allegation.”

I do not want to interfere with the way that this has been working in the past. The words “not in good faith” are not necessary to enable the sort of case that the Minister is troubled with to be adequately covered. That is what it boils down to. Having said that, and in the belief that the Ministers and his advisers might go away and think about this again, which would be quite easy for them to do, I will ask the Committee’s leave to withdraw the amendment.

Before I do so, I shall pick up on the example that was used, where a person decides to ban someone from coming into their shop because they misbehave when they are in there; such a person has shouted, hurled abuse and been difficult with others. The shopkeeper says that they cannot come in, but the person argues that the reason why that is being done is because the shopkeeper knows that they are a Roman Catholic, a Jew or a Sikh. That is the basis. The shopkeeper says that that is nonsense, but he meanwhile has to keep order in the shop. Knowing well that the allegation is false, he wishes to keep the person out. That is the classic sort of illustration, as the Minister says, of where people must be allowed to take decisions.

The wording has got to be seen in that light. That is why I repeat that I have a question mark in my mind about this rather strange phrase

“not in good faith, a false allegation.”

Is it necessary?

Paul Goggins (Labour, Wythenshawe and Sale East)

I have frequent cause to reflect on the contributions of the hon. Gentleman. I am almost certain that we are completely right on this matter, but I undertake to consider it a little further. I will write to him, sending copies of the letter to all members of the Committee, so that we can all be 100 per cent. confident that what we have in place in relation to other legislation applies equally well in this area.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister and I am pleased that I continued talking for another 10 seconds. On that basis, I will not take up any more of the Committee’s time. I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise to discuss one issue. I accept that we might have an opportunity to deal with it later under new clause 15, which is why I will be brief, but it does fall here and there is a danger that we might not reach it. I will understand if the Minister cannot give me a full answer.

I want to check whether the Minister understands the implication of the change in wording agreed in the House of Lords in relation to A’s religious belief. I think that he will be aware of the debate. In Bill 72, which was presented in the previous Parliament to the Commons, and in this Bill, when it first went to the House of Lords, subsection (1) was differently phrased. Another subsection talked about where the religion was not also A’s religion and where the basis of the discrimination was based on a religion that was not A’s religion. That was subject to some debate and the Government drafted the new wording—in response to probing by my noble Friend Lord Lester— that we see before us. It is the right wording, but I have a simple question. In the employment regulations, which another clause of this Bill amends, a version of the old wording is used. I wonder whether the Minister might consider it appropriate—given that he understood the doubt about the old wording—to transpose the new version, which is good and clear, to the employment regulations so that there is parity.

The argument is not too complex, but including in parentheses, “whether or not it is also A’s religion or belief” in line 26 makes it clear that it does not exclude A’s religion. Therefore, an orthodox Jew would not be able to discriminate against a progressive Jew. That would also apply to an analogous situation. I understand that the Minister may not be certain, and I should like to be able to read him the wording in the employment regulations, but I would be grateful if he responded to that point.

Paul Goggins (Labour, Wythenshawe and Sale East)

The best way to respond is to promise that when we debate this—[Interruption.] Well, I have every confidence that, under Mrs. Anderson’s chairmanship, we will reach the point in the Bill that the hon. Gentleman wishes to debate. I look forward to discussing it later.

Clause 45 - Goods, facilities and services

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 134, in clause 45, page 27, line 18, leave out from ‘public’ to ‘of’ in line 19.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 135, in clause 45, page 27, line 26, leave out subparagraph (ii).

No. 136, in clause 45, page 27, line 31, leave out subparagraph (ii).

No. 137, in clause 45, page 27, line 36, leave out subparagraph (ii).

Dominic Grieve (Conservative, Beaconsfield)

I seek simply to probe a little on the difference between provision to the public, and provision to a section of the public. I think that I know what that distinction may be, but it would be helpful if we heard from the Minister how he sees that working in practice. The is an argument that, ultimately, when one says that one is providing something to the public, it is inevitably to only a section of the public that wishes to have a particular service. That raises the question as to whether the expression “a section of the public” is not, in fact, otiose. I just wanted the Minister to explain what he has in mind.

Paul Goggins (Labour, Wythenshawe and Sale East)

Clearly, it would be common ground in the Committee that it would be discriminatory if, on grounds of religion or belief, person A provided person B with goods, facilities or services that were of a lesser quality, or on different terms than those on which A would normally provide them to other members of the public. However, it is also the case that some suppliers of goods, facilities and services choose to provide them in different ways to some sections of the public, for example, by offering preferential terms or discounts to students, the unemployed or old age pensioners.

The Bill would prevent a service provider from offering such discounts to a section of the public—for example, the unemployed—but then, on the grounds of religion or belief, refusing to provide that same service to a prospective customer who fell into that category. For example, if a theatre charged £6 per ticket in general but had a concessionary price for the unemployed of £5, it would be unlawful to charge an unemployed atheist the full price while arguing that that was the price that was generally available to the public. If that atheist were unemployed, they would fall within the category to which the theatre had decided to give a discount, and should be able to enjoy that as much as any other unemployed person. It would be discriminatory to prevent them from receiving that benefit because they held a particular belief.

I hope that the hon. Gentleman will see the merit of the provision. We do not want discrimination of the kind that I have just outlined. Where somebody belonging to a certain group obtains a benefit from a particular provider of goods, facilities or services, they should be able to receive it, and they should not be discriminated against because of their religious or other beliefs.

Dominic Grieve (Conservative, Beaconsfield)

I am very happy with the Minister’s reply, and I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 151, in clause 45, page 27, line 39, at end insert

‘but not a boarding house with accommodation for under 12 persons where the owner or his near relatives reside on the premises.’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 110, in clause 47, page 28, line 43, leave out subparagraph (i).

No. 111, in clause 47, page 29, line 2, leave out ‘six’ and insert ‘twelve’.

No. 152, in clause 47, page 29, line 18, at end add—

‘(4)For the purposes of this part, “premises” shall include a boarding house or similar establishment with accommodation for under 12 persons.’.

Dominic Grieve (Conservative, Beaconsfield)

We now come to a part of the Bill that has attracted a certain amount of controversy. In a remark the Minister made earlier when we first started discussing clause 44, I detected him getting his retaliation in first, before anything had been said that might cast aspersions on the Government’s position. I hope that the Minister will relax, and just consider carefully the issue that the Committee needs to grapple with.

I say at the outset that it may well be that the Government’s position on this issue is correct, but there is a matter that requires some thought. There has been comment about the extent to which a person should be allowed to discriminate on grounds of religion or belief in respect of providing accommodation. The starting point for the relevant part of clause 45 is part of clause 47, which some of the amendments in this group address. Clause 47 makes it clear that in terms of a landlord parting with part of premises in which they or a near relative is going to continue to reside, subject to the amount that is parted with being no more than two households or six individuals—this is how the law will be framed—there is an entitlement for discrimination to take place. The philosophical underpinning for that is the belief that when one starts to intrude on to what I would call the private sphere, it is not fair or right to insist that people take into their own homes individuals with whom they may have profound disagreements.

In respect of clause 47, it is clear to me—because there is nothing to suggest otherwise—that the Government envisage that in such circumstances a cash element might be involved in the decision to dispose of or manage parts of premises; in other words, the situation might not be as simple as people inviting guests into their home, because the guests in question might be paying guests.

With that in mind, I turn again to clause 45 and the prohibition on discrimination for goods, facilities and services. It seeks to make a distinction between what is said in clause 47—which I have just touched on, I hope correctly—and what it says in relation to hotels, boarding houses or similar establishments. Clause 45 makes it clear that discrimination cannot be exercised in

“a hotel, boarding house or similar establishment”,

however strongly an individual may feel about a matter. Therefore, this is the question I ask the Minister: how was that distinction arrived at, and what is the basis of the difference?

I think I am right in saying—the Minister will correct me if I am wrong—that a boarding house can be a bed-and-breakfast accommodation; I think he used that phrase. It seems to me that that amounts to little more than the kind of accommodation that is touched on in clause 47. Indeed, to an extent, I have difficulty in drawing the distinction. Where is the dividing line between bed-and-breakfast accommodation and a person who divides their premises with another person? If I say that I will have a paying guest in a room in my house, what is the nature of the services that I would have to provide to change that into a boarding house or similar establishment? Is it a matter of statutory regulation, or some other distinction? I want to tease that issue out from the Minister in Committee today.

The effect of my amendments would be to take a boarding house with fewer than 12 people in it out of the regime of goods, facilities and services and into the exception clause—clause 46—which also raises the issue of whether premises should have as few as six individuals in them in order to qualify for the exception. Six individuals could occupy little more than three rooms, so if somebody lives in an old mansion and derives some income from paying guests, they may find that they quickly reach that ceiling.

Another thing that caused me problems in definitional terms was what constitutes two households. Again, can the Minister help us? That term seems to be highly flexible; I assume it means a family unit, but it could comprise a large number of people. Could we have more helpful clarification from the Minister about that?

These are probing amendments; I want to make that quite clear to the Minister. Underlying them, however, is an anxiety. I suppose the classic illustration causing that anxiety is that of the elderly person running a small bed-and-breakfast accommodation. There are many such establishments up and down the country. The reality is that people coming into those premises have to live cheek by jowl with the host or hostess within that place—and, frequently, sharing common facilities. To all intents and purposes, it is difficult to see how to distinguish them in any way from someone within the exceptions to clause 46—except, possibly, where the person concerned provides them with breakfast in the morning.

A few minutes ago, the Minister emphatically said that boarding houses must be covered. Although I do not mind that degree of emphasis, will he help the Committee work through its implications for the varied ways in which people provide goods and services? The Government clearly decided—rightly, in my view—that there had to be exceptions to respect personal susceptibilities within the private sphere. But at what point should the line be drawn? Since I am not 100 per cent. clear at what point the line has been drawn, I particularly seek clarification on that.

Paul Goggins (Labour, Wythenshawe and Sale East)

Again, the whole Committee is grateful to the hon. Gentleman for tabling these amendments to open up discussion. Essentially, the amendments that he has made concern where the discrimination line should be drawn when people offer accommodation to other people.

The effect of amendments Nos. 151 and 152 would be that small boarding houses

“with accommodation for under 12 persons”

should be treated as small premises. They would thus be excluded from the prohibition on discrimination. We believe that there is an important distinction between temporary accommodation—such as that provided in boarding houses, bed-and-breakfast accommodation and hotels—and the supply of premises.

Amendments Nos. 151 and 152 would, in effect, mean that providers of bed-and-breakfast facilities could carry on discriminating against Muslims, Hindus or anyone else seeking overnight accommodation from them whose religion they may not like. That is the essential distinction. One is short-term accommodation, usually provided on a nightly basis and similar to a hotel, in that someone is there in a highly transitory way. In the case of premises, however, individuals may be resident for considerable periods and be using premises as their home. Indeed, they may be tenants and have solid legal rights to remain in that residence. In that instance, the relationship between the landlord and the resident is clearly much more important to both parties than it would be in the provision of bed and breakfast. One, in essence, provides an overnight service; the other provides a long-term home. There is a fundamental difference between the two, and however large or small the boarding house is, it could never fall into the second category, which is more permanent.

On the matter of thresholds, I must be completely honest with the hon. Gentleman and say that it is not entirely certain or clear why the thresholds were chosen.

Alison Seabeck (Labour, Plymouth, Devonport)

I am sorry to return to the point that my hon. Friend has just made about the difference between someone who is in accommodation for a longer period and who therefore does not fall into the category of an overnight bed-and-breakfast stay, but there are hotels in certain parts of the country, particularly in coastal areas, that accommodate elderly people who have a bed-and-breakfast, hotel-type service but who are there for very many months. My aunt on my husband’s side was in one such hotel for years until she died. Into which category would someone like that fit? I am sure that there is an answer, but I am not sure into which category that person would fit.

Paul Goggins (Labour, Wythenshawe and Sale East)

I hope that I can answer my hon. Friend’s question. In essence, we want to draw a distinction between the transitory short-term nature of the overnight accommodation provided in bed and breakfast and the arrangement whereby someone opens up their own home to another person long-term. The latter arrangement is very different to short-term bed and breakfast accommodation. That is the difference that we seek to reflect here. I shall think carefully about my hon. Friend’s point. One learns a lot in Committee, and I shall get back to her if I have further thoughts on the matter.

I was explaining to the hon. Member for Beaconsfield that if we are all being completely candid, which of course we are in Committee, it is not entirely clear why the particular thresholds were chosen. It is, however, important to acknowledge that they have worked in other legislation. He is right that we mean family units when we talk about households. I acknowledge that they will be different in size and scale, but we are still are talking about two family units when we talk about two households.

In conclusion, it is worth pointing out that in discussing these issues, we start to enter into the sort of areas that the discrimination law review will doubtless want to consider very carefully, and it is entirely right that we do so. None the less, we stand by the wording of the Bill, which we believe is clear, and I invite the hon. Gentleman to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I shall certainly seek the Committee’s leave to withdraw the amendment. I will reflect on what the Minister said, but I still have the anxiety, which was well encapsulated by the intervention made by the hon. Member for Plymouth, Devonport, that the distinction that the Government are making is much less clear-cut in practice than one might assume.

The principle of someone providing another person with long-term accommodation, including breakfast on a long-term basis, is very well established. Indeed, one of my relatives lived exactly in the way described by the hon. Lady. Having returned penniless from the middle east in the 1970s as a result of ill health, he spent the next 20 years lodging with a friend of his family’s. He certainly had one meal a day, and, I suspect, was sometimes invited in for other meals of the day. Those meals were provided on a basis that would have fallen into the boarding house category. The relationship was based on an informal understanding and friendship, even though there was payment, yet it would have fallen foul of the legislation. I therefore worry about it.

Equally, I also acknowledge that the Government have a perfectly good point; the line must be drawn somewhere. If the Ritz hotel were to say that it would not accommodate people because it did not like Roman Catholics coming across its portals, most people would think that that was fairly scandalous.

We have, however, to be careful when straying into the private sphere. The Government have recognised that; otherwise they would not have included the saving subsections of clause 47—the exceptions to clause 46. I hope that they will consider whether a wider range of arrangements may not be made, where something approaching bed and breakfast is provided, and that it may be unfair to say to people, “You cannot turn somebody away because you object profoundly to their religion or philosophical beliefs”. If the Minister is willing to reflect on that, I too will do so and see whether there is anything that we need to come back to on Report.

I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I must apologise to the Committee. The Minister said earlier that he wondered where I had drafted the amendments. It is clear that I must have drafted at least one of them, amendment No. 108, with a shaky hand, because it reads like gobbledegook. On looking at it again, I note that if I had written not

“leave out from beginning to first ‘to’ in line 6”,

but “leave out from beginning to first ‘to’ in line 7”, it would have made a great deal more sense.

Before we pass on from the clause, I should like the Minister to consider subsection (3) and help the Committee a little, because I have some anxieties that I was hoping to highlight with the amendment. But with your leave, Mrs. Anderson—and I hope that I do not stray—I hope that we can do so by simply looking at the matter on clause stand part.

Subsection (3) provides a let-out clause. I was about to say that it was the halal butcher’s let-out clause, but I suppose that it might also be the kosher butcher’s let-out clause. It says:

“Where a skill is commonly exercised in different ways in relation to or for the purposes of different religions or beliefs, a person who normally exercises it in relation to or for the purpose of a religion or belief does not contravene subsection (1) by—

(a) insisting on exercising the skill in the way in which he exercises it in relation to or for the purposes of that religion or belief”.

A halal butcher may say, “The way I kill animals for slaughter is without pre-stunning. That is my religion or belief; therefore I must insist on exercising my skill as a butcher in that particular way.” As I understand it, that provides him with a complete let out from the operation of subsection (1), which is the prohibition on discrimination in the provision of facilities and services. To take that issue just a little further, that would presumably apply even where the halal butcher was slaughtering meat that might be provided subsequently to people who were not Muslims.

Then we come to paragraph (b), which currently says that the second exception is if a person

“reasonably considers it impracticable to exercise the skill in that way in relation to or for the purposes of another religion or belief, to refuse to exercise it in relation to or for the purposes of that other religion or belief.”

I detect a double standard creeping in, which means that a halal butcher is entitled to say, “I insist on exercising my skill in a particular way, because my religion requires it”, but Tesco, for example, would have to fulfil the conditions of paragraph (b), which asks whether people have considered whether it is impractical to provide halal meat. I am not sure that that is fair.

If we are saying that if somebody has a religion that requires him to something in a particular way, he is free to do it that way—even if other people might be inconvenienced, such as those who would prefer to eat meat that was not killed in the halal fashion—why should there be the second test, which says that people are exempt only if they reasonably consider it impractical to exercise the skill in that particular way? I find the interrelationship between those two concepts difficult to understand and I would like clarification from the Minister about why both those paragraphs, with slightly different impacts, have been included alongside one another. That is important.

One feature of people saying that they have to exercise a skill in a particular way is undoubtedly that people who may disagree with them, but do not take as much offence as the person concerned, end up having to be subordinated to it. We eat a great deal of halal meat in this country, because in many butchers that is all that is available. The same would apply to kosher food. There is quite an important issue of discrimination and I seek the Minister’s clarification as to why the paragraph is worded as it is.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would like the hon. Gentleman, also, to comment on the matter, if he thinks that it is appropriate. The question of skill is interesting, because the distinction applies only if a skill is involved, rather than in instances in which food is ordered from a wholesaler. In his view, does the clause fail to deal with the question whether a shop or chain of shops is discriminating if certain parts of the community feel that it could, if it chose, provide the food that they want by ordering it from somebody else, but it has chosen not to do so? Should it deal with that question at all? A similar question would apply to a school canteen that failed to provide for the dietary preferences of a certain religion although no skill, as defined here, was involved; it would simply have to order goods from a supplier. Would he care to comment?

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman goes to the heart of the matter. There is a twofold test. One part is to provide protection for somebody who says, “I have to do something in a particular way; that is my religion or belief.” In the case of halal butchery, it is questionable whether a Muslim has to kill sheep in a particular way because of his faith. The test is, rather, that a Muslim cannot eat meat that has not been killed in a particular way. That raises the interesting question of why paragraph (a) has to be there at all. It is arguable that a Muslim butcher is under no constraint to kill sheep in a particular way so long as the end product is not going to be eaten by Muslims.

On the second point, the hon. Gentleman is right: there is a clear implication that anybody who provides goods or services, such as an ordinary high street butcher, has to ask himself whether it is reasonably practicable for him to organise his business or skill so as to ensure that Muslims can buy meat from his shop. That is why I posed the question. Indeed, amendment No. 108 would remove the middle part of paragraph (b), so that it could also be a defence to say that one refuses to exercise the skill

“in relation to or for the purposes”

of another religion. In a sense, that is the other side of the coin to paragraph (a). However, that is clearly not what the Government intend. We need to tease out from the Minister what the Government want.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is a little complicated. I think that my question was on a different point from that being made by the hon. Gentleman. I shall not interfere with any exchange that the Minister may have planned to have on the matter, but I want to ask about the impact of the clause, and this is the time to do it. Would it become incumbent on a school canteen to provide particular types of food to children, or would a high street butcher have to provide certain types of meat to such a community? If it was straightforward for them to do so—if they could get it from another wholesaler and price it accordingly—would the clause make it incumbent on them to do so, or would they run a risk of being accused of committing a tort of discrimination under the clause if they chose not to do so? Skill is a separate issue. I am sure that my question was dealt with in another place, but it would be useful to the Committee for it to be clarified.

I know of a number of people who are concerned about how far they will have to go. I know that the question relates to previous provisions, but I would be grateful if the Minister clarified the point.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is worth making it clear at the outset that the skills involved in the preparation of food are different from the question whether a supermarket should provide particular goods or whether a particular school should provide a certain range of school meals. Supermarkets and schools will take decisions that relate to their customer base, the area that they seek to serve, the children on the school register and so on. However, if they refuse to provide certain goods or services when all the evidence suggests that they should do so, they could be at risk under other provisions of the Bill, but not under subsection (3), which has a narrow significance.

Subsection (3), which the hon. Member for Beaconsfield queried, recognises that in relation to some activities, most notably the preparation of food, some people operate in a particular way and with particular skills, in line with their religious doctrine. That is a serious issue, although my hon. Friends may have noticed I let forth a slight laugh earlier. The hon. Member for Beaconsfield said that this would doubtless be the halal butcher or kosher clause, and at that precise moment I read in my brief that the most obvious example would be kosher and halal butchers. That coincidence brought a smile to my lips. None the less, it is an interesting and serious issue. We certainly would not wish the clause to be used to force those butchers to change their practices for the benefit of other religions.

As always, the hon. Gentleman raises a point that is worthy of further reflection. I am happy to do that, not to ensure that the intention is right—I think that the hon. Gentleman shares our good intentions—but to check whether the wording delivers everything that we want. I want to satisfy myself that it does. I think it does, but I shall reflect further on the matter, and if we feel that the wording needs to be tightened, we will come forward with our thoughts in due course.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister felt that the point that I raised about school canteens and high street butchers generally providing a service for the community might not be covered in subsection (3), but is it covered elsewhere in the clause? In other words, if a high street butcher operates in an area where there is a potential market, will he be forced to respond to that market? What is the threshold for schools before they will be expected to provide canteen meals for a particular community?

It seems to me that subsection (1) talks of discrimination against person B when the service in question is already being provided to the section of the public to which he belongs. I thought that I understood it, but now I am not sure. I would be grateful if the Minister made absolutely clear which part of the clause applies.

Paul Goggins (Labour, Wythenshawe and Sale East)

Sometimes in our debates, we all end up more confused than we were at the beginning. The important point is that we are trying to ensure that a person’s skills relating to religious observance and practice are not skewed in a particular way because of the wider interests of the community. We must respect those skills and traditions. In the same spirit in which I made an offer of further reflection to the hon. Member for Beaconsfield, I say to the hon. Member for Oxford, West and Abingdon that I am prepared to take this issue away and reflect further on it to ensure that we have got the wording right.

I am sure that the whole Committee regards the objective as important. We do not want someone with a particular skill or religious belief to be forced to subvert their practice or religious belief because of wider interests. We want to protect that, and they should not be accused of discrimination if they want to protect it. To be certain, I will reflect on the wording and, as I said, if further tightening of the wording is necessary, I will introduce further proposals in due course.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for what he has said. I apologise to the Committee because the concepts in subsection (3) are not easy to explain and I may not have explained them as well as I had hoped. Paragraph (a) seems to give a complete let-out to someone who, being of a particular religious faith, requires that animals be slaughtered in a particular way. He can say, “I insist on doing it in that fashion because that is what my religion requires.” It seems to me that there is nothing in paragraph (a) to say that his position need be reasonable or not. For example, someone can say, “I am a Muslim. I run a small abattoir and I insist that all the animals that come through my abattoir are slaughtered in a way that is compatible with halal butchery.” That seems to be the end of the matter and that is the let-out.

When we come to paragraph (b), the concept of reasonableness suddenly creeps in. That is what alerted me to the oddity of the two paragraphs together. I shall explain what paragraph (b) seems to be saying. Let us suppose that someone came along and said, for example, to a non-Muslim local meat supplier running a small abattoir that it would be useful if halal meat could be supplied to the town that the supplier served. If they said, “It’s true that my religion or belief does not insist on humane killing, but nevertheless my belief as a Christian is that animals should be made to suffer as little as possible, so I want all my animals to be pre-stunned,” the argument might be, “You’re not being reasonable.” That is why I have anxieties about the way in which the two paragraphs are linked.

Paul Goggins (Labour, Wythenshawe and Sale East)

Just occasionally, some things become clearer during deliberations in Committee. It is true that there is a test of reasonableness in paragraph (b), but the reasonableness relates to the practicality of exercising the skill. For example, if the meat were to be cut in a very restricted place, it might be impractical to serve the wider interests of other, non-Muslim, potential customers of the business. That may be a practical reason that prevents the service from being provided, which would be perfectly reasonable. The reasonableness test relates not to the exercise of the skill but to the practicality of exercising the skill. That is my understanding, but I will continue to reflect on the matter.

Dominic Grieve (Conservative, Beaconsfield)

I understand that, but the measure could be used as a lever to force people who may not have strong religious beliefs or any religious beliefs to conform to the views of those who do have a strong religious belief, because it would simply be said, “Well, there is no practical reason why you can’t provide these people with goods and services, namely meat, in the form that they want.” Unless a person could say, “Actually, it is religious scruple that prevents me from doing so, because I insist, on religious grounds, that I must slaughter my meat in a particular way,” they could be required to do it. The impact of the measure would be to force those who ran abattoirs and who had no religious beliefs to provide halal meat even though they might have scruples or anxieties about it and did not particularly want to do it.

As the Minister will know, the question of halal and, indeed, kosher food is controversial. I believe fundamentally—this is my personal view—that it must be allowed, because it covers a religious matter, but if someone were to ask me whether it is better for animals to be pre-stunned or to have their throats cut I should not have the slightest hesitation in saying that I prefer them to be pre-stunned. I detect in the subsection a slight twist against people, which worries me, to force them to provide goods and services in a way that they might not want to do. Not having any strong religious views, they would be told that they had to do so, because it would be unreasonable not to.

That is what I think is wrong and that is why I tabled an amendment to make it clear that reasonableness did not enter into the matter at all. I hope that the Minister will think about that. There is something fundamentally wrong in telling people, “Because there are Jews or Muslims or any other group in society who require some goods or services in a particular way, you, not having any strong religious views on the subject, should be compelled to provide them.” That is a potentially objectionable aspect of the subsection.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for agreeing to consider my point. The question I am raising does not relate to the issue of the skill but is a general question: will high street butchers or supermarkets be expected to provide to people who want them certain services that would, potentially and practicably, be available if commercial businesses chose to go into the market? If they do not do so, will they run a risk of being held to have discriminated under the clause? It would be helpful if the Minister could clarify that at some point. I suspect that the clause does not force commercial decisions on commercial organisations, but it is not all that easy to tell.

Clause 46 - Premises

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I invite the Minister to clarify what subsection (3) means in plain English. It states:

“It is unlawful for a person to discriminate against another by refusing permission for the disposal of premises to him.”

That is not subject to an exception under clause 47. I presume that it will prevent discrimination in the selling of a property or—and this is what I wanted to check—the renting of a property where the landlord is not living. I raise the point with particular reference to an advertisement that the Minister may be aware of, which attracted some controversy. I think that it was in a Catholic newspaper, and offered a tenancy only to Catholics. That received some attention, about 18 months ago, on the question whether it constituted the sort of discrimination that would not be permitted any more. It is clear that it is caught by the clause and it is not the subject of any exceptions under clause 47(1).

Paul Goggins (Labour, Wythenshawe and Sale East)

I hesitate to comment on the specific example that the hon. Gentleman gave without knowing a little more of the detail. If he has a copy of the advertisement, I would be more than happy to have a look at it and give him my considered view.

Very briefly, subsection (3) relates to a situation in which a person’s permission is required for the disposal of someone else’s interest in a property. Typically, that would be the executor of a will. Where that permission is required for the disposal of premises, to withhold that permission on the grounds of religion or belief would be discriminatory. The provision seeks to rule out such behaviour.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister answered my question in legal terms—I am not surprised about that. He talked about an executor. I am asking whether subsection (3) covers the disposal of premises—I do not know whether “disposal” is a particular term that relates only to probate matters—when a property is just sold to another person, or someone who is not living on the premises rents the property to another person. What is the difference between subsection (3) and subsection (1)? I guess that it is to do with refusing permission. If the Minister could clarify the meaning of that in normal life, I would be grateful. If I have not made my question clear, I would be happy to discuss it with him outside the Committee, if that would be convenient to the Committee.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am always happy to pursue discussions outside the Committee as well as inside it, but I think that the hon. Gentleman is on to something when he highlights the words “refusing permission”. That is the key thing that the provision seeks to capture. The obvious example is the executor of a will because their permission would be required before a particular property could be disposed of. The hon. Gentleman may be able to think of other circumstances in which that occurs. The executor of a will would be the most common case. We want to ensure that nobody can stop a sale on the grounds of religion or belief in those circumstances. As I said, I am happy to discuss the matter further outside the Committee if he wishes.

Clause 47 - Section 46: exceptions

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 14, in clause 47, page 28, line 36, leave out ‘46(1), (2) and (5)’ and insert ‘46’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following: Amendment No. 109, in clause 47, page 28, line 36, leave out ‘(5)’ and insert ‘(3)’.

Government amendments Nos. 15 to 19.

Paul Goggins (Labour, Wythenshawe and Sale East)

This is a rare opportunity for me to go first in a debate. Amendments Nos. 14 and 15 stand in the name of my hon. Friend the Minister for Women and Equality. They are minor technical amendments that correct a printing error in the numbering of the clause arising from the removal of the provisions in clause 46 which previously made harassment in the provision of premises unlawful. Amendments Nos. 16 to 19 remove the remaining references to harassment from the immigration exception in clause 51(4). Amendment No. 109, in the name of the hon. Member for Beaconsfield, has exactly the same effect as amendment No. 14—great minds think alike.

Members of the Committee will be aware that the provisions that would have protected people from harassment on the grounds of their religion or belief were removed from the Bill on Third Reading in the other place. These amendments simply complete that process. Amendments Nos. 16 to 19 should not, however, be taken to mean that we support the removal of the harassment provisions from the Bill. We believe that it is wrong and that it should be unlawful for those carrying out public functions or running premises to harass people because of their religion or belief. My noble Friend Baroness Scotland was very clear in the other place that we do not want to see immigration officers, prison officers, landlords and others harassing people on the grounds of religion. There was wide agreement on that principle, although unfortunately not on the wording or the detail of our proposals.

My hon. Friend the Minister for Women and Equality made it clear on Second Reading that we remain convinced of the need to act against harassment on the grounds of religion or belief and that we will consider the question of harassment further as part of the discrimination law review. At this stage, I simply commend these minor technical amendments to the Committee and invite the hon. Member for Beaconsfield not to press amendment No. 109.

Dominic Grieve (Conservative, Beaconsfield)

I am happy to hear what the Minister has to say, and I will not press amendment No. 109. I am glad that we were thinking alike. It is my practice to read the text of a Bill and table my own amendments before I read anyone else’s. That is why it features. If I had noticed what the Minister had done, I would not have tabled it.

Clause 49 - Section 48: exceptions

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 154, in clause 49, page 30, line 11, leave out ‘(1)’ and insert

‘(1) (a), (1) (b), (1) (c) (i) and (1) (c) (ii)’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 153, in clause 49, page 30, line 31, leave out ‘or (iv)’.

No. 155, in clause 49, page 30, line 33, after ‘curriculum’, insert

‘in relation to religious instruction or religious education’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful for the opportunity to introduce this group of substantive amendments. I knew that I could rely on the hon. Member for Beaconsfield to subject other clauses to the forensic examination that they require. Indeed I saw him drafting his amendments in Committee, while also paying great attention to proceedings and intervening, which is a skill that I have yet to learn. This is an important group of amendments, and I hope that I can make some progress with the intention behind them, if not necessarily being able to change the drafting today.

Clause 48 (1) reads:

“It is unlawful for the responsible body of an educational establishment ... to discriminate against a person—

(a)in the terms on which it offers to admit him as a pupil,

(b)by refusing to accept an application to admit him as a pupil, or

(c)where he is a pupil of the establishment—

(i)in the way in which it affords him access to any benefit, facility or service,

(ii)by refusing him access to a benefit, facility or service,

(iii)by excluding him from the establishment, or

(iv)by subjecting him to any other detriment.”

Clause 49 exempts certain schools from those general provisions not to discriminate. The current wording of clause 49(1) states that the whole of clause 48(1) shall not apply in relation to a list of various schools, which I shall abbreviate to “faith schools”. I hope that the Committee will bear with me, as the category is perhaps a little more complex and wider than that. Clause 49(2) creates an exemption in respect of some of the provisions that I have just quoted in relation to the content of the curriculum or acts of worship, which I think are taken to be acts of worship organised by the school or educational establishment itself following an amendment to clarify that in the House of Lords.

There is a strong case for saying that those exemptions go too wide. They go beyond what is required to maintain the character of faith schools—that is the term that is used—and it would be better if they were drawn more narrowly to prevent breaches of human rights and occasions of discrimination. There is no good reason why these provisions need to be drawn so widely. Things would be somewhat easier if clear guidance—preferably statutory guidance; I suspect that we will come on to guidance questions later—as to how schools should operate in this respect were provided for all schools, to help them to stay within the Human Rights Act 1998 and avoid discrimination. It would be easier if there were any guidance in this respect—or, indeed, if there were ways to ensure that the Government were being vigilant about unreasonable discrimination, or discrimination that could not be objectively justified.

It is quite difficult for pupils and/or their parents to bring actions. Pupils are just trying to get on with being in school. Therefore, the onus in drafting legislation is to ensure that as there is such a big discrepancy between the power of the school authorities and that of the pupil, great care is taken about discrimination.

My amendments seek to narrow the provision. If we are to have discrimination in admissions on religious grounds, which is a subject for debate another day—we ought to debate it, although we do not do that very well in this House—the exception for subsection (1)(a) of clause 48 should be kept in respect of faith schools, as should the one for subsection (1)(b), which deals with refusing to accept an application, but two provisions should be removed from subsection (1)(c):

“(iii)by excluding him from the establishment, or

(iv)by subjecting him to any other detriment.”

I shall deal with each of those in turn.

Making an exemption from the general duty of discrimination not to expel someone or exclude them on the basis of their religion raises serious issues. Some pupils may decide that they want to change their beliefs while a pupil of a school. I am speaking generally. It is easier in this context to discuss a publicly funded school carrying out a public duty that admits someone on the basis that they are, say, a Catholic. If that person then states that they do not, in fact, subscribe to those religious views and that they must have the freedom to make up their own mind, as indeed must their parents, is it right that they could be excluded or expelled on the basis that they no longer complied with the religious requirement for admission? I do not understand how it would be made clear to both parties that that would not be permitted, but to deprive someone of their education in such an establishment simply on the basis of their changing or losing their religion seems not to be objectively justified.

I do not believe that that would necessarily be a frequent occurrence. One of the arguments about the appropriateness or otherwise of faith schools involves the question of how many children have particularly deep religious beliefs or affiliations. Clearly some do, as do their parents, but that is the sort of thing that we would expect our state education to provide for, so that children feel free and not encumbered by a requirement to change their religion or how they observe it.

The second way in which amendment No. 154 seeks to narrow the exception for faith schools concerns the

“subjecting him to any other detriment”

provision. I am not the only person who believes that that goes too wide. I refer the Committee to the 16th report of Session 2004–05 of the Joint Committee on Human Rights, on the Equality Bill. The report is on the previous Bill in the previous Committee, in the form of Bill 72, which came before the House of Commons. The Joint Committee states in paragraph 49:

“The Bill’s legitimisation of such activity may fail to satisfy the positive obligation, in particular under Article 8 ECHR, to take steps, including adequate legislative provision, to prevent breaches of Convention rights.”

The Joint Committee then makes the following recommendation:

“Whilst we accept that certain differences in treatment on the basis of religion are likely to be justified in the interests of maintaining the character of faith schools and protection of the Article 9 rights of religious bodies, we do not accept that all of the discriminatory treatment which would be permitted under clause 52(1)—

that is clause 49(1) of this Bill—

“including measures imposing ‘any other detriment’ on a pupil because of their religion or belief, could be so justified.”

That report was produced towards the tail end of the last Parliament, so there was not a Government response to it, and because the House of Lords was so busy dealing with the issue of harassment—rightly so, and the Government took the decision to solve that debate by taking it out of the Bill—we have not had sufficiently detailed scrutiny in the House of Lords of the Government’s response to that clear recommendation of the Committee as it was then formed.

Amendment No. 153 is analogous, and seeks to amend clause 49(2), which relates to the exemption given from responsibilities under section 48 to anything done under the content of the curriculum or acts of worship. Already, the Government have seen that it is appropriate to exclude the exclusion provision from the exemption, so that schools will not be able to rely on clause 48(1)(c)(iii) to exclude anyone from the establishment

“in relation to anything done in connection with ... the content of the curriculum, or ... acts of worship”.

I am arguing again that subjecting a pupil to any other detriment on the basis of the content of the curriculum or acts of worship would also be inappropriate. It is not necessary, and runs the risk of making schools believe that they can discriminate disproportionately and in a manner that is not objectively justified. Rather than relying on case law, or long arguments about any guidance that might be produced, we should seek to have narrow exemptions in that area, when talking about publicly funded bodies that carry out public functions.

Amendment No. 155 seeks to probe why, in clause 49(2)(a), the Government talk about the content about the curriculum generally, rather than just

“in relation to religious restriction or religious education”.

I hope that the amendment that I have tabled inserts that phrase after “curriculum” and before “or”—it is not in the marked-up version of the Bill from which I am reading—because it is in the religious instruction and education parts of the curriculum that a school might seek to say that it was going to teach and have certain emphases on certain religions, and that that might apply generally, or in particular to faith schools. That is a matter for the curriculum, but in relation to other parts of the curriculum, the Government will have to explain why they seek provision for subjecting someone to any other detriment, and not just refusing access to a benefit, facility or service, or for discriminating in the way in which they afford any pupil access to any benefit, facility or service covered by clause 48(1)(c)(i) and (ii).

Those are serious matters, which are subject to a recommendation from the Joint Committee On Human Rights. The Minister and his colleague the Minister for Women and Equality paid due attention to the concerns of that Committee about the Bill. That is right, as the Bill will set up the Commission for Equality and Human Rights—something on which the Joint Committee has a particular focus. I would be grateful if the Minister could provide some reassurance about the points that I have raised.

Paul Goggins (Labour, Wythenshawe and Sale East)

I begin by thanking the hon. Gentleman for the constructive tone in which he has introduced his amendments. I shall explain in a moment why the Government oppose them, but he has well known views in this area, and he has applied his mind in a very focused way to the particular issues in hand. I am not aware of any particular reason why the Government’s response to the report of the Joint Committee on Human Rights would not have been appropriate. My hon. Friend the Minister for Women and Equality and I will look into why there was no response, and will come back to the hon. Gentleman and other members of the Committee on that subject in due course.

The report examined the wider question of the potential exemption of faith schools in general from the protection of this legislation, which is rather different from the kind of exclusion to which the hon. Gentleman has referred in his amendments. He will forgive me for being slightly pedantic about the phrase that he used about the harassment provisions, but the Government did not “remove” those provisions from the Bill. They were removed by his hon. Friends and hon. Members on the Conservative Benches, against the better judgment of the Government. However, we have concluded that it would be better for that matter to go before the discrimination law review and, we hope, for us to achieve a consensus on the way forward.

Amendment No. 155 would clearly confine the curriculum exception to religious instruction and religious education, and amendment No. 153 would not exempt action related to the curriculum or to religious worship that could be regarded as subjecting a pupil to detriment. If either or both amendments were accepted, that would allow claims of discrimination about aspects of the curriculum when the curriculum is broad, fair and well balanced. The provisions are in place to protect the curriculum.

We do not believe that the concept of individual rights should be used by those who may not agree with particular aspects of the curriculum in our schools as a means of challenging existing school policies of inclusiveness and diversity in the curriculum that are set out in statute. The Education Act 2002 provides for a basic curriculum that every maintained school is required to follow. There would be considerable concern if there were a suggestion that the way in which dancing, singing, music, physical education or even science lessons were taught should be changed to avoid challenge on the grounds of the religion or belief of certain children or their parents. That would clearly be unacceptable. However, such challenges would be permitted if the amendments were accepted.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I understand the Minister’s point. That is why I said that I thought these would be probing amendments. However, could he explain why the term “any other detriment” is required when clause 48(1)(c)(i) and (ii) already refer to preventing a pupil from having access to a benefit, facility or service? What detriments does he hope that the exemption would capture that are not already captured by those sub-paragraphs?

Paul Goggins (Labour, Wythenshawe and Sale East)

One could speculate about the detriments that any individual pupil or family might feel, but they should not have the facility, because they have an objection based on their religion or belief, to challenge aspects of the national curriculum that are agreed and set out in statute. Whatever reason they had would be a matter for them. We do not want schools to be continually engaged in litigation and legal challenge on matters that are beyond their scope to determine, having been determined in statute by Parliament. The amendments would permit that, although I accept that they have been tabled as probing amendments.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I understand the Minister’s point and I will reflect on it. However, in respect of acts of worship, it is hard to see what detriment someone might feel they were subjected to, given that section 72 of another measure allows pupils to be pulled out of collective acts of worship of the kind referred to in subsection 2(b). Therefore, is it really necessary to provide for that catch-all exemption of “any other detriment” in respect of acts of worship that one does not have to attend, which is different from curricular matters, where there is no similar opt-out for pupils or their parents?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman is right. There is the opportunity to opt out. However, if the amendments that he has tabled were included in the Bill, it is at least arguable that an individual pupil or family could challenge the holding of the act of worship as being of detriment to them. We do not want that to happen. The policy is set out clearly in statute and in the guidance that goes with it. We do not want individuals who argue that something is of detriment to them to be able to challenge the school and embroil it in all kinds of legal challenge, debate and argument in an unfair and burdensome way. We want to make it clear that we do not want individuals to pursue legal action along those lines.

The hon. Gentleman is right to say that it is all set out in statute and that an individual can opt out of an act of worship. However, he cannot challenge the school for holding an act of worship on the ground that it is of detriment to him.

Amendment No. 154 relates to exceptions for faith schools. During the passage of the Bill, we have made it clear that the part 2 provisions on discrimination on the grounds of religion or belief raise several issues particular to education and that certain exceptions are needed, especially for faith schools whose operation the Bill is not intended to undermine. I acknowledge the constructive way in which the hon. Gentleman put his argument. He has views about faith schools and no doubt he would love to have a further debate about them. However, he restrained himself this morning and focused on one or two particular issues. The Government have no intention under the Bill of reopening the role of faith schools. Faith schools have a right to operate effectively and they must be free to discriminate in certain respects on religious grounds.

Faith schools are therefore currently exempted from the provisions specific to educational establishments. The amendments would remove that exception from two specific areas. They would make it unlawful for faith schools to exclude an existing pupil or to subject an existing pupil to any other detriment on grounds of religion or belief. The main purpose of the provision is to avoid the use of the Bill to allow individuals and particular families to bring complaints about the way in which faith schools are run when, in fact, what is being challenged is a fair and reasonable aspect of the way in which the school is organised. Such action would involve the school in unnecessary time and resources in defending legal challenges.

Faith schools should be able to discriminate in relation to admissions, acts of worship and so on. However, I was struck by the phrase used by the hon. Gentleman when he talked about making sure that we had the appropriate balance between the power of the school authority and the position, the needs and the rights of individual pupils. I wish to offer him some encouragement. I am willing to look a little more closely at the particular issues that he raised. He argued that it was not right for a school to exclude existing pupils on the grounds of religion or belief. Given that a faith school has control over its admissions policy, it is unlikely that there would be many examples of when individuals would switch religion while they were at school. However, I accept that there is at least a possibility that that would happen and I shall think more clearly about the provisions. The rights of individuals to have continuity of education, association with their peers and other developmental matters are important considerations. I hope that he will be reassured by the fact that I am willing to look carefully at matters to make sure that we have struck the right balance.

We will be issuing guidance in respect of the measures. No doubt we shall discuss them, but elsewhere in the Bill are order-making powers that can add to the exceptions or remove them. Whether or not it will be necessary to do something with the Bill, we shall issue guidance on the matter and watch carefully to see how it is implemented in practice.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Can the Minister assure the Committee that the guidance produced will be subject to full consultation with those who are not religious in a way that exists extensively for the religious and faith communities that have a particular perspective that they are entitled to have? They feel sincerely that sometimes their views impact on the non-religious in society and it is important at every stage to capture those views. If he can give such an undertaking, it would be of some reassurance.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will happily give that reassurance. At times, I fear that some of my colleagues in the Government might consider that I am a little ambitious when it comes to the issuing of guidance and consultation exercises. I am positively in favour of that, but sometimes I might take such action a little too early in the process. Clearly, guidance cannot be issued until the legislation is settled and measures have been put on to the statute book. I am a great believer in getting the guidance right, not least through the involvement and engagement with groups that have a particular interest in such matters. In respect of the Bill, the groups would include religious groups as well as non-religious groups, such as humanists. Not only would that improve the guidance, but the level of understanding of what legislation is intended to do and what it has the power to do. That approach also avoids the development of myths, which can grow up unnecessarily and damage public confidence. I hope that that reassurance regarding guidance is sufficient. I take this issue seriously.

I hope to give the hon. Gentleman comfort by telling him that we continue to consider these issues carefully. When we first drafted the proposals that we are discussing, they had the back-up of the harassment clauses, which gave us extra confidence that the rights—as he put it—of the individual pupil would be protected. Now that the harassment provisions are no longer part of the legislation, I shall consider whether it is still strong enough to protect those rights, notwithstanding the right of faith schools to operate in an effective way that reflects the ethos of such establishments and of the faiths to which they adhere. With that reassurance, I hope that the hon. Gentleman will be happy to withdraw his amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for the content and tone of his remarks. I stress that my pointing out that there has not, as far as I know, been a response to the 16th report was not a criticism. The report probably came out just before the general election was called. The Committee is more than capable of raising with Ministers any concerns that it might have about lack of response; that is not for me to do. I was merely pointing out that because there was no response, it would be worth while seeking a response from the Minister now in semi-formal terms regarding my concern, which raises a point that is relevant to the Bill.

I am grateful for the Minister’s reassurance about guidance. There is an argument that draft guidance can sometimes be made available while a Bill is being scrutinised, but that is not the case here. Therefore, we rely on proper consultation. My point about the need to consult the non-religious is that when dealing with establishments such as faith schools, the natural impulse is to think that any changes will affect the religious, but every exemption given to religious groups—well, not every exemption, but many of the exemptions and special provisions given, appropriately or otherwise, to faith groups—will have implications such as reducing choice or freedom or causing some other detriment to people who are not of a religious group or that religious group. It is important that we policy makers should think beyond people of religion when considering such matters. There are instances in which we are talking about 20 people, of whom 19 might well be religious, but we know that at least 30 per cent. of people say in censuses that they are not religious and that when it comes to observance, the majority are not religious. Their needs should be looked after.

The Minister is correct to point out that the harassment provisions were taken out against the Government’s wishes through a Division in the House of Lords. Part of the worry—I do not want to go into specifics—was that there were wide exclusions in the original Bill, even on harassment, which were then narrowed on Report in the House of Lords after consultations, which seemed, at least originally, to exclude some schools from the need to avoid harassment. I know that the Government thought that they had the balance right by the time that they made those amendments on Report, but the House of Lords was not persuaded of that. Nevertheless, the right not to be harassed still exists because of the implications of the Human Rights Act 1998. The Minister is right to point out that schools will have to have regard to that when operating under the exemptions.

Finally, I am grateful to the Minister for agreeing to consider the issue of exclusion, which is not provided for in subsection (2), but is allowed for elsewhere. I hope that he will consider that carefully. I agree that it may not occur frequently, but even one occurrence of that, or people feeling that they cannot change their religion because of the threat that that might affect their continuation at that school, would be a serious loss of certain freedoms. In view of the fact that the Minister has agreed to reconsider that small area at least, I beg to ask leave to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 112, in clause 49, page 30, line 38, leave out ‘or repeal’.

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments: No. 113, in clause 49, page 30, line 40, leave out paragraph (c).

No. 114, in clause 49, page 31, line 4, leave out paragraph (b).

No. 115, in clause 49, page 31, line 7, leave out paragraph (c).

Dominic Grieve (Conservative, Beaconsfield)

These amendments concern the power of the Secretary of State by order to amend the legislation, in so far as it provides for the amendment or repeal of exceptions in subsections (1) or (2), for an additional exception to clause 48, and for making

“provision about the construction or application of section 44(3)(d) in relation to section 48.”

Each of those provisions raises different issues. As a general rule, I do not much care for powers that can be made under statutory instrument. After all, we spend a great deal of time in Committee considering the legislation, when the reality is that it can then be changed in important and fundamental particulars merely by a one-and-a-half-hour debate in the House of Commons, with no opportunity to amend the Government’s proposals. Therefore, I would like the Minister to explain why each of these provisions is included in the legislation in their current form, and to justify the necessity for each of them.

Amendment No. 112 deals with subsection (3)(a). I have left open the option for the Secretary of State by order to amend an exception, but not to repeal one. Why do the Government require a power to perform such a repeal by statutory instrument to an exception that has been heavily debated in Parliament?

I feel rather less strongly about additional exceptions, because an addition is different from a repeal, but what about paragraph (c) which refers to “construction”? Can the Minister explain in what circumstances the Government might make provision about

“the construction or application of section 44(3)(d)”?

We addressed that earlier. It is to do with the criteria of discrimination,

“which A cannot reasonably justify by reference to matters other than B’s religion or belief.”

On one showing, that opens up a very considerable hole through which the Government can alter this legislation at will in future.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise to make two points. It is curious that the hon. Gentleman treats repeal and addition differently. Obviously, he is probing and he is entitled to frame his amendments as he wishes, but this relates to the point I raised earlier that every exemption given for one organisation—in this case it happens to be a faith school—potentially has serious implications for the freedoms and choices of others. In cases involving faith schools, those are implications to do with religion.

The idea that it is okay to add an exception for faith schools under clause 49(1) and a clause 48 exemption, but not to repeal provision for faith schools is open to question. There is a sort of favouritism—I hate to use the term—towards faith groups.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman is wrong. I would take the same view if the legislation were intended to provide an exception for faith schools or non-faith schools. It just so happens that in this instance it concerns faith schools. The basic principle is that the state imposes a burden, and there is a profound philosophical difference between the state being able by statutory instrument to impose another burden and the state by statutory instrument being able to remove a burden. That is the basis of the differentiation I make.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is a fair argument, which could be balanced by the argument that in the case of repeal both Houses have already agreed what should happen. It could be argued that primary legislation should be necessary to revoke the consent of both Houses. That might not apply to an exception, on which debate had not already taken place, and an affirmative resolution might be appropriate.

That is a relatively minor point, and my other point is also a minor one. I believe that the House of Lords made a similar amendment elsewhere in the Bill to curtail the Government’s ability to make changes of the kind in question by statutory instrument, or at least to ensure that that was done in a certain way. Does the Minister recall that, and would such amendments make the clause consistent with another clause in this part?

Paul Goggins (Labour, Wythenshawe and Sale East)

As the hon. Member for Beaconsfield pointed out, clause 49(3) gives the Secretary of State order-making powers to vary exceptions in the light of experience. I hope that I can reassure him that the Government do not intend to establish powers under this clause that would drive a great hole through the Bill. Far from it. We want a facility to ensure that we can make minor adjustments and amendments to the Bill in the light of experience. Through our engagement with stakeholders across the board we have arrived at a set of well worked proposals that will, largely, work in practice. However, we want to allow ourselves the flexibility and room to improve the measure in the light of experience. Debate on a previous clause showed that there is a need always to maintain the right balance between institutions’ and individuals’ interests. Through experience we may learn to achieve that slightly better than we now envisage.

Amendment No. 112 would remove the power to repeal an exemption. That would render us helpless if, in the light of experience, we discovered that an exemption in the Bill was not having the intended effect and was disadvantaging certain groups. All members of the Committee would want us to be able to change that. Amendment No. 113 would restrict the power to make changes to the application of the test of reasonable justification in relation to indirect discrimination in schools. I cannot speculate now on what the particular instances might be. If I could see that far into the future, I might have brought them forward for inclusion in the Bill. However, we need the power to make such variation as we learn from experience.

Amendments Nos. 114 and 115 would remove the provisions to allow a degree of flexibility in an exception or clarification that might be needed in different geographical locations. That involves an important point. Education is a devolved matter, but the issue of equality is not, so we need to ensure the right balance between our equality legislation and the different systems for providing education around the United Kingdom. We do not have a one-size-fits-all approach and we need the facility to develop things accordingly.

I know that the hon. Member for Beaconsfield has strong views about order-making powers and I did not think for a minute that he would let an opportunity go by to bring those concerns to the attention of the Committee. However, the affirmative procedure is to be used and both Houses would need to agree any amendments in the normal way. Such opportunities can arouse significant debate in and out of Parliament. All that would be dealt with properly and in consultation with stakeholders, in a coherent and positive way. I hope that notwithstanding his general reservations about order-making powers, the hon. Gentleman will see the merits of those set out in the clause as an opportunity to improve the Bill in the light of experience.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the hon. Gentleman give way?

Paul Goggins (Labour, Wythenshawe and Sale East)

With three words to go, I give way to the hon. Gentleman.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am curious about something. I found the other clause that was amended. Clause 65 in the Bill that originally went to the House of Lords stated:

“The Secretary of State may by order amend this Part so as to—

(a)create an exception to a prohibition ...

(b)vary an exception to a prohibition ... or

(c)remove an exception to a prohibition”.

That is now clause 63 of the Bill, which states that the Secretary may by order only do so to “(a) create an exception”, or “(b) vary an exception”, but not to repeal an exception. I should be interested to know how that now relates to the provisions that we are discussing.

Clause 51(1) is about public authorities. It seems either that the House of Lords decided that they should do only one of the provisions, or that there was a particular reason for reducing the scope in relation to public authorities, but not in relation to the clause under discussion.

Janet Anderson (Labour, Rossendale and Darwen)

Order. For the benefit of the Committee, the Minister does not have to answer for what happened in the House of Lords, but if he wishes to do so—

Paul Goggins (Labour, Wythenshawe and Sale East)

That is very kind, Mrs. Anderson. Either the hon. Gentleman is on to something, or he is not. I am not going even to try to respond in detail to the point that he has just made, but I shall consider it carefully. If he is not on to something, I shall be able to write to him to explain why so that he can relax.

I accept that as legislation is developed between different Houses and at different stages within this House, there are potential inconsistencies in different parts of the Bill. If he is on to something, we shall want to address it. I am grateful to the hon. Gentleman for pointing out what may be an issue. If it is not, I shall be only too happy to write to him to put his mind at rest.

Dominic Grieve (Conservative, Beaconsfield)

The Minister is, as ever, reassuring in his manner, and in the circumstances I shall not press the amendment to a vote. The hon. Member for Oxford, West and Abingdon rightly highlighted amendments in the other place to a further clause—clause 63, as it now is. I am pleased to see that they took place. They show that it is possible to rein in the Government’s tendency to seek to legislate by statutory instrument. However, the Minister has made a good case for keeping in the Bill the particular statutory instrument powers under discussion, and I beg to ask leave to withdraw the amendment.

Clause 51 - Public authorities: general

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 116, in clause 51, page 32, line 12, leave out paragraph (d).

Janet Anderson (Labour, Rossendale and Darwen)

With this it will be convenient to discuss the following amendments:

No. 117, in clause 51, page 32, line 13, leave out paragraph (e).

No. 118, in clause 51, page 32, line 14, leave out paragraph (f).

No. 119, in clause 51, page 32, line 15, leave out paragraph (g).

Dominic Grieve (Conservative, Beaconsfield)

We now come to a clause that is of considerable importance to the Bill. The Minister will tell me if I am wrong, but if I understand it correctly, the duties imposed on public authorities are very much wider than those imposed on other people. Perhaps we should expect that.

The duty spelled out in clause 51 is a duty on the public authority not to do any act that constitutes discrimination as previously defined in clause 44. Clause 51 is not just about the provision of goods and services; it appears to go further than that. The Minister may seek to enlighten the Committee about it.

We then come to the clause’s detail. The first thing that struck me was the exceptions provided in subsection (3). The prohibition on discrimination does not apply to the House of Commons, the House of Lords, the authorities of either Houses of Parliament, the Security Service, the Secret Intelligence Service or GCHQ, nor to a part of the armed forces of the Crown that is assisting GCHQ.

One problem is the issue of what is a public authority. It would be useful if the Minister could clarify what the Government consider a public authority to be, because it appears that the term can be defined fairly loosely.

It is apparent from the Freedom of Information Act 2000, for example, that the special forces of the Crown and any unit assisting in the operation of GCHQ are already considered not to be a public authority, or are exempt from the status of public authority, which raises the question why that needs to be spelt out specifically in the clause. Equally, the House of Commons is considered to be a public authority under the Act, but not under this Bill.

There is a lack of clarity. The amendments seek to do two things. First, they ask the Minister to say what a public authority is—a question that will crop up over and over again as we discuss the other amendments that I have tabled to the clause. Secondly, they ask him to justify why the Secret Intelligence Service, the Security Service, GCHQ and the armed forces of the Crown that help GCHQ should be exempt.

An exemption may of course apply differently for different reasons. Under the Freedom of Information Act, one can see why certain bodies may be exempt, although it is noteworthy that the Security Service and the Secret Intelligence Service do not seem to be entirely exempt from an application under the Act.

We need to know why the Government believe that those bodies may be required to discriminate on the ground of religion. The same may apply to the House of Commons and the House of Lords, but I rather assumed that it could be said that we are sovereign bodies and therefore entitled to regulate ourselves, so I did not table amendments to that part of the clause.

As a first in our consideration of this rather complex and important clause, the Government need to justify why those bodies have been exempted. Notwithstanding the grandiloquent aims of the legislation, the cynic may say that the Government harbour secret anxieties about certain religions or religious groups, and believe that they should be able to discriminate simply on the ground of religion when considering the most secret matters. I should be grateful if the Minister would comment on that.

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman’s remarks fall into two broad groups. The first is the definition of “public authority”. That has already been debated extensively in another place and will, I am sure, be discussed further in Committee. I draw his attention—although I know that I do not need to—to subsection (2)(a), which defines a public authority as one that

“includes any person who has functions of a public nature”.

Organisations such as local authorities, which are established with a specific public remit, would clearly be regarded as public authorities.

The hon. Gentleman’s question begins to press when he asks whether other groups that may not naturally be regarded as public authorities may on certain occasions be public authorities for the purpose of the law and their responsibilities. That pertains particularly to the question of religious organisations. Would a faith group, for example, be regarded as a public authority? It would not be regarded as a public authority in itself, but a parish group or a faith group that had a contract with a local authority to provide a particular public service because it fitted the local authority’s aims and objectives and accorded with its social objectives, perhaps to provide support to young families or young children, would, in exercising its function as part of the contract, act as a public authority and have the obligations that a public authority would have.

Dominic Grieve (Conservative, Beaconsfield)

I was aware of subsection (2) and the broad definition, but I am hoping that in the course of debate on an exceptionally important clause we will try to ascertain what the limits and the impact might be. Few would disagree that a religious organisation providing a public service to the wider public must not discriminate in the way in which it does that. A question then arises: to what extent might the fact that it is providing a public service impact on its internal structures, and on what it can and cannot do?

Another example, to which I will return later, is my own inn of court, the Middle Temple, which undoubtedly carries out public functions both as a local authority and in training and validating students for the Bar. Although not a religious organisation as such, it has some overtly religious manifestations to its existence. One of the things that I will be asking the Minister to consider as we progress through today’s debate is to what extent those might be restricted by the operation of clause 51.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am not going to venture an answer to the hon. Gentleman’s specific question at this stage. We are having an important debate, which is a function of the reality that public services in our community are increasingly provided by a range of different organisations. Sometimes provision is by private or voluntary organisations, and at other times it is by the public authorities. That is a healthy state of affairs. Another responsibility that I hold as a Home Office Minister is to encourage the greater delivery of public services by voluntary and community organisations. There is a growing consensus that that is a good thing.

The obligations that go with the provision of a public service are important, and we make it explicit in the Bill that in relation to discrimination on the grounds of religion or belief it carries significant and serious responsibilities. No doubt there will be further opportunity to tease the issue out in Committee and elsewhere, because it is an important one.

It is, however, a leap too far to say that because a faith group or some other voluntary organisation provides a specific service at a particular time, that means that in all circumstances it operates as a public authority. I hope that we will be able to clarify precisely where the cut-off points are. That is a general issue that pertains to a number of groups of amendments that we will discuss.

Amendments Nos. 116 to 119 would remove from clause 51 the exceptions provided in the clause for the Security Service, the Secret Intelligence Service and GCHQ, and for parts of the armed forces assisting GCHQ in accordance with a requirement of the Secretary of State. All those organisations may be called upon to consider whether individuals of particular religions or people who hold philosophical beliefs may be involved in activities that threaten national security.

The security services would, of course, then be bound to act to protect national security from any threat that they perceive. Inevitably such activity would involve treating people differently, and religion or belief might well be a part of the reason for that differential treatment.

We think that the potential for harm to those services’ operations that could arise from dealing with challenges under part 2, were such challenges to arise, outweighs the potential for harm caused by the discrimination allowed by these exceptions. Where there are two competing harms, one must make a judgment about which is the greater. The possibility of some form of discrimination is outweighed by a consideration of national security, where lives and whole communities might be at risk.

In this day and age, we must be especially vigilant about national security matters. I know that all members of the Committee will agree with that. The arrangements for exclusion of the security services, and of actions that are justified by the need to safeguard national security, from the prohibition of discrimination are proportionate to the need.

Dominic Grieve (Conservative, Beaconsfield)

I understand the Minister’s point, but if we go further into this part of the Bill we reach clause 62, which states:

“Nothing in this Part shall make unlawful anything which is done for, and justified by, the purpose of safeguarding national security”,

so why does there have to be an additional exemption for specific security organisations? I infer from that that even without national security implications, the Government take the view that those bodies might have to discriminate on the grounds of religion. It might be uncomfortable to probe such matters, but they are there. One of my reasons for probing is that the Government say, “You shall not discriminate—it is wrong to prevent somebody from coming into your hotel because you do not like his faith or the cut of his jib—but we can do it when it comes to the operation of the security services.” That is a rather odd way of proceeding.

We in this House are supposed to be subject to scrutiny so, inconvenient as it may be—we often tend to let such things through on the nod—I have to tell the Minister that I do not think that he has made his case. He has the national security defence in clause 62, which is very reasonable, but the subsections before us seek to go further and say that discrimination can take place within certain organisations for reasons that the Government have not specified.

Paul Goggins (Labour, Wythenshawe and Sale East)

I see no contradiction in having specific exceptions as well as a general one. Let me explain: it will give staff in the organisations specified in clause 51 clear confidence about how to proceed. We are talking about balancing two potential harms. We do not say that some discrimination is a good thing. It is a bad thing, but weighed in the balance against the potential of a threat to national security, the need to protect the community outweighs the harm done by the discrimination. The specific exemptions are there so that it is absolutely clear that those institutions and organisations are exempt.

However, we need the general power, too, for private security organisations that are not specifically listed as being exempt because they are not public authorities; only organisations that have a public remit are exempted under clause 51(3). Those organisations—which might have to balance discrimination against national security as part of the overall effort to ensure that we remain a safe society—can be protected by the powers in clause 62, even though they cannot claim exemption under clause 51. The two clauses complement each other; organisations that cannot claim exemption under clause 51 are covered elsewhere. We are balancing two difficult things, not saying that discrimination is all right—it is not; it is a serious matter but it has to be weighed against the greater need to ensure that our society is properly protected.

Dominic Grieve (Conservative, Beaconsfield)

I hear what the Minister says. There may be a certain inevitability to it, and I do not intend to press the amendment to the vote. However, there is something slightly odd about this. When we introduced employment protection, we made special provision for the security services, enabling people to bring complaints about unfair dismissal and discrimination within their organisations. I think that that has worked well. I appreciate that this is a difficult matter, but the extent of discrimination in the field to which this measure could apply seems very wide. Is that necessary, when it could be dealt with on a national security basis? Notwithstanding what the Minister said, subsection (3) extends beyond that consideration, otherwise it would have spelled it out explicitly.

The matter having been ventilated, I shall go away and think about it. I beg to ask leave to withdraw the amendment.

Standing Committee A

Equality Bill [Lords]

Roger Gale (Conservative, North Thanet)

Good afternoon. I see that the Committee made rapid progress this morning.

Clause 51 - Public authorities: general

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 120, in clause 51, page 32, line 30, leave out paragraph (f).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 121, in clause 51, page 32, line 48, leave out paragraph (g).

Dominic Grieve (Conservative, Beaconsfield)

I welcome you back to the Chair, Mr. Gale. We have indeed made a lot of progress, and I am sure that we can make much more this afternoon.

The amendments deal with subsection (4)(f) and (g) on immigration rules and entry clearance. Although to stimulate debate I have proposed to leave out both paragraphs, I have different views about each. Paragraph (g) is utterly logical. We know that we have to admit people specifically to fulfil religious duties in Britain. That is an area of exception that has long existed. Judgments are bound to be made in respect of criteria pertaining to religion.

However, paragraph (f) is a little more vague, and I would be grateful if the Minister explained why it is thought necessary to make the prohibition of discrimination on the grounds of religion apply to the immigration rules. One can of course think of occasions when one might wish to exclude somebody on the basis of their religion, but that will be not because of the religion itself but because of their behaviour. I wonder whether it is necessary for paragraph (f) to be phrased in such stark terms. Rather, could it not be restricted further? I wait to hear from the Minister about the Government's reasoning on that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Again, we are grateful to the hon. Gentleman for tabling these amendments so that we can have focused discussion on this part of the Bill. The clause represents a narrowing of the original terms of the Bill. That was achieved, with or without the Government's agreement at first sight, in the House of Lords. In respect of paragraph (g), I would make the same comments as the hon. Gentleman has just made.

However, there is a problem with paragraph (f). In human rights terms, the Government might be able to cite in any event an objective justification for taking action to deny someone the right to be here. That may well engage issues to do with the enjoyment of their private life which is effectively indirectly due to their religion. However, that would be subject to an objective justification.

In respect of the discrimination measures, the Government must have some form of exemption, in case the concern is about not only the behaviour, but the presence in the UK. The test is not about behaviour in respect of the public good. It is that the exclusion or refusal of entry clearance would be conducive to the public good.

It would be interesting to note to what extent the experiences of Reverend Moon required that sort of provision. I imagine that he was excluded not directly on the basis of his religion, but on the basis of something quite closely connected to it. Although the Government suffered a reversal in the courts, perhaps on a technicality, that example prompts questions about whether it would be fair for the Home Secretary to use such powers of exclusion and removal against people on the basis of religion, when, from that religion's point of view, that is done simply because its adherents are not understood or because its religious opponents—religions do have opponents—are besmirching them. Clearly, there is an appeal right, but it would be useful to hear from the Government how often it is anticipated this sort of exception would be engaged under the statute.

Both the relevant paragraphs include, in brackets, the words

''but this exception does not have effect in relation to harassment'',

and I am not sure whether those were deliberately left in, following the removal of harassment from the provisions, whether it is intended to tidy things up, or whether it is reasonable to keep the wording in any event. It might well be, but I should be grateful for clarification.

Paul Goggins (Labour, Wythenshawe and Sale East)

A warm welcome to you, Mr. Gale. Perhaps I should deal first with subsection (4)(g), because that seems to have struck a chord with the Committee and the hon. Member for Beaconsfield (Mr. Grieve) described it as utterly logical. Of course, the immigration service makes special arrangements for the admission to the United Kingdom of people, such as ministers of religion with particular religious functions, to assist religious communities that need access to such people. We need to be able to admit those people without acting unlawfully. I am pleased at the response of hon. Members of all parties.

Subsection (4)(f) would allow the immigration service to take entry decisions on the ground of public good where a person's religion or beliefs might be a part of the ground for the decision. In each and every case the decision would be an individual one about a specific applicant. There are, clearly, people whose religious views are so extreme that we would not want them to visit the United Kingdom to propagate them. The hon. Member for Oxford, West and Abingdon (Dr. Harris) mentioned the Reverend Moon. His exclusion was on the ground of public order. However, there may be individuals who apply to come to this country and who hold a particular religious belief—for example, that children should renounce their parents—that we find wholly unacceptable, and do not want people to propagate in our communities.

It is difficult to distinguish between holding that religious belief and giving effect to it. Clearly, in making a decision about an individual, the immigration service will want to take account of not just the person's religious belief but its potential impact on vulnerable young people. An exemption to allow the immigration service to act in that way seems fair. The threat that is posed may not be of the scale that we discussed in earlier deliberations, such as terrorism or other wider threats, but the protection of, particularly, the most vulnerable people in the community is important. The immigration service should have a mind to that when making decisions about individuals.

I hope that the hon. Member for Beaconsfield will accept that those are reasonable grounds on which to provide an exemption. If so, he may consider withdrawing his amendment.

Dominic Grieve (Conservative, Beaconsfield)

The Minister makes a persuasive case. I hope that he will excuse my saying that it highlights a slight oddity that underlies the measure. I suspect that I shall, at the end of the day, be comfortable with it, but I think that the Committee should bear that in mind. We consider it acceptable for the state to lay down criteria by which it can deny access to the country to individuals whose views it considers not conducive to the public good. However, under the Bill we would deny individuals in Britain the right not to provide goods and services to people about whom they might hold exactly the same view.

I can make a distinction between those two concepts, but we should do well to have the issue in mind in Committee, because that is the reality of what we are doing. There is an argument, which was raised in another place, that we may be going too far—I now come back to my views about beliefs, which I raised with the Minister earlier—in extending the mantle of acceptability to other people's views, and that in doing so we may put an unwarranted burden on individuals. I have a residual anxiety about that.

There is, however, logic in the Minister's position as to why he wants to refuse entry to the relevant people. Of course, that is open to challenge in the courts, and I dare say that it will be challenged. One of the probable grounds on which it will be challenged is the European convention on human rights freedom to practise a religion.

I have no doubt that this area of the legislation is likely to be tested. I can well imagine that some individuals who are kept out—for good reasons, in my view—will say, ''The only basis on which you are keeping me out is my religious views, and that is discriminatory.'' It will then be for the Government's lawyers to argue that they are entitled to do so. In such circumstances, they may fall back on the argument that public order issues relating to such people warrant their exclusion. That is why I initially touched on whether we should focus on the public order element.

I genuinely hope that subsection (4)(f) stands the test of being challenged in the courts. In view of what the Government are setting up in the rest of the Bill, I suspect that it will come to be challenged, but that is not to say that I think that the Government are wrong.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Surely that is the way for decisions not to be challenged on the ground of discrimination. I am not a lawyer or draftsman, but it seems to provide a specific exemption. There is a debate to be had about whether the human rights of someone outside the country in respect of exclusion can be heard by the European Court of Human Rights. Indeed, that was one of the issues in the Moon case and the court found that they were not. I would have thought that the provision dealt with the question of whether there has been unlawful discrimination—because it will not be unlawful.

Dominic Grieve (Conservative, Beaconsfield)

I do not share the hon. Gentleman's confidence. I would love to see the advice that the Government received, but I appreciate that I shall not. He advances a good argument, and it is possible that the Government will be successful, but I feel that they will be successful only if they are able to show that a public order issue warrants the discrimination that subsection (4)(f) allows them to practise.

Having conceded the principle of non-discrimination enshrined in the Bill, the Government may find themselves on more difficult ground in arguing to keep people out whose presence they think is not conducive to the public good. That is not to say that they will not succeed, but there are perfectly clear grounds on which an applicant could frame an argument. He could say, ''You are discriminating against me for coming into the United Kingdom and the only basis of that discrimination is in relation to religion.'' In view of the evolving nature of the law in that area, such an application might succeed. I hope that that does not happen, because I can think of a large number of people who ought to be kept out of the country whose views are particularly pernicious. I exaggerate when I say a large number, but I can certainly think of a few.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not want to drag out the debate, but the Government have made it clear that the basis upon which they will decide whether to exclude or remove people because their presence is not conducive to the public good is not only public order or good relations with other countries; they will also consider the list of unacceptable behaviour consulted on and finalised in the summer. On Monday, however, that list was criticised by the Joint Committee on Human Rights, especially in respect of the provision whereby someone who is judged not to have glorified or encouraged terrorism but merely justified it could be removed or excluded. I bow to the hon. Gentleman's greater knowledge, but I think the action will be there rather than in the area of discrimination.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Gentleman may be right, but my experience is that those who challenge Government decisions tend to load their shotgun with as many pellets as possible. It is highly likely that one of the pellets will be about the contrast between the requirement of a public authority not to discriminate and the exception in subsection (4)(f). It could be argued that although Parliament has expressly provided that exception, clause 51 generally prohibits discrimination in the widest possible terms. I am sure that the hon. Gentleman can see the incompatibility between those two provisions. Somebody will then argue that we should consult the European convention on human rights, and that the provision is not ECHR-compliant. That is what I apprehend may happen.

One's position is arguably weakened by the fact that the general prohibition has been spelt out so clearly and that that contrast has been included. The Government will argue that the measure is reasonable and proportionate—the classic words used in such cases. We should have in mind that the provision is a major exception, when subsection (4)(g) seems innocuous and exceptions can be allowed. I say to the Minister genuinely that I wish the Government well with the provision. I wait with interest to see what happens, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 16, in clause 51, page 32, leave out line 47.

No. 17, in clause 51, page 33, leave out line 11.

No. 18, in clause 51, page 33, leave out line 14.

No. 19, in clause 51, page 33, line 17, leave out

'(but this exception does not have effect in relation to harassment)'.—[Paul Goggins.]

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 138, in clause 51, page 33, line 41, at end insert—

'(n) action in relation to—

(i) acts of worship or other religious observance organised by, or on behalf of, any public authority,

(ii) the maintenance of places of worship or of any chattels, furnishing or equipment for religious worship or instruction on behalf of any public authority, or

(iii) the payment of any person for the purpose of facilitating acts of religious worship.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss new clause 13—Protection of Christian heritage—

'Nothing in this part shall require

(a) the removal of any copy of the Bible,

(b) the removal of any cross or other Christian symbol,

(c) the removal of any Communion table,

(d) the ending of Christian prayers,

(e) any restriction on the celebrations of Christmas, Easter or any Christian festival,

(f) the withdrawal of funding from a Christian organisation,

(g) a religious organisation in receipt of funding to change or cease any practice relating to its religion or belief as a condition of the funding.'.

Dominic Grieve (Conservative, Beaconsfield)

We now come to one of the Bill's more important issues that we must consider. The matter has certainly given rise to much anxiety. It may be possible for the Minister to allay that anxiety during the sitting; it may be, of course, that some members of the Committee will consider that there is no anxiety to be allayed, and that they shall want to take the thrust of clause 51 to its logical conclusion, which is, effectively, the secularisation of public authorities.

The amendment and the new clause try to provide a foundation for a debate about the issue. I shall try to explain the concern. New clause 13 is substantially lifted from an amendment proposed by the Christian Institute. It is concerned that applied to a public authority, clause 51 would involve a public authority removing any connection it might have with the Christian religion. Amendment No. 138 seeks to address that anxiety by providing for a specific exception towards the end of the clause, after subsection (4)(m).

Why is the anxiety present, and will the Government provide reassurance? The Minister will agree that we must accept that a feature of this country is its long Christian past. Although there are other, minority religions, some of which feature prominently today and have featured consistently for the past 300 years, their minority status has nevertheless been accepted. It has often been accepted and, indeed, enshrined by the special position given to the Church of England in our constitutional arrangements, that the country has a Christian foundation. That is reflected by the census, which shows that although many people do not practise their religion very much, upwards of 70 per cent. consider themselves Christian.

As a consequence, many institutions in Britain are suffused with recognition of their Christian heritage—not only organisations that have an overtly religious purpose. I am satisfied that those organisations and educational establishments have been provided by the Government with adequate protection in the Bill. I am more troubled about institutions that might qualify as public authorities but which, while fulfilling largely secular functions, including the provision of services to people on a completely equal basis, nevertheless contain recognition of their Christian heritage, which manifests itself from time to time. Let me give an example.

I mentioned earlier that I am a member of an inn of court—I am a bencher of the Middle Temple. That is not an overtly religious foundation, although its symbol, the lamb and flag, undoubtedly has a Christian derivation and represents an element of Christian symbolism. The inn, however, although it looks after students, grants scholarships and provides facilities without any religious discrimination of any kind, also celebrates the Christian deity and provides support for the Christian religion. It does that through grace before meals and, more pertinently, by providing support and subsidy to a church, the Temple Church. That might come out of separate funds; I have not researched the matter. It is clear that it does not do the same thing for Jews, Muslims, Hindus or anybody else, although, doubtless, if a Jewish, Hindu or Muslim organisation wanted to book a room for something with a religious aspect to it, there would be no problem about their doing that.

The question that arises, therefore, is whether anything in clause 51 makes that impossible. Having read and re-read the clause, I was left with a doubt in my mind as to whether there might be a problem. I am aware that when this was debated in the other place, it was looked at specifically in the context of harassment. Because the harassment clause has gone—properly, in my view—some of the mischief has disappeared with it.

The obvious anxiety that was manifest and, indeed, debated in the other place was that somebody would come along and say, ''I, as somebody of another faith, find the saying of grace before the meal in the hall of the Middle Temple in some way harassing or offensive.'' The disappearance of the harassment clause removes that limb. However, it could be argued that, in providing part of the service of the inn, although the question remains whether it is a public service or can be distinguished from it, the inn would in some way be discriminating.

An inn of court is a good example, because it is a body that has functions that I can think of as ''public authority functions'' as well as other functions. Other examples might include a corporation such as the City of London. That undoubtedly celebrates its Christian heritage. I do not know how that is manifest in funding terms, but the Lord Mayor has a close connection with the church of St. Lawrence Jewry and there is, again, a lot of Christian symbolism enmeshed in the corporate structure. Other local authorities have civic services. When I was a councillor, not only did we have a civic service once a year, but, every second year, I think, we went to the local synagogue. Such things evolve of themselves, and I have no doubt that corporations now make visits to local mosques and Hindu temples.

All those things are done on what I would call a basis of natural progress, not on the basis of somebody coming along and saying, ''I have a right here; what you are doing is discriminatory.'' I cannot think of anything more likely to bring this legislation into disrepute than if we end up with a challenge to the way in which public authorities conduct their normal routine and engage at the same time in a celebration of the deity—a Christian deity, in all likelihood. They may suddenly find themselves hauled over the hot coals. Unfortunately, as the Minister will be aware, there is plenty of evidence of public authorities behaving in a, frankly, barmy fashion in response to pressure from various minority groups.

That has been fairly well documented. The examples range from public authorities being told that they cannot replace an antique statue of a wild boar in a public park because it has some offensive quality for a minority religion, to a public authority allegedly saying—although I do not know whether this is true—that its employees cannot have piggy banks in their office desks. I think that particular public authority was a Conservative one. These things are troubling, because they suggest that people wish to pick quarrels on matters of the utmost triviality, and offend people in doing it. Since those things are not fanciful, it is important to get the legislation right. I am mindful that there is an exception at subsection (4)(k), but I shall give way to the hon. Gentleman before I discuss it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As the hon. Gentleman said, this was more of an issue while the harassment provisions were in the Bill. I would not want it to be felt that those of us who were concerned about the measure were against harassment provisions being brought in. It was because the definition of harassment included such terms as violation of dignity and creating an offensive environment. People with strong religious views will often claim that. I know that he recognises that there is no right not to be offended. That was the real problem, which I suspect is lessened under the current framing of the Bill.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the hon. Gentleman. I agree, and I was using the word ''harassment'' in its generic legal sense. Nobody wants people to be harassed, yet the reality of the Bill's wording—before that particular clause was wiped out in the other place—was that harassment had a broad definition and it could easily have been used as a pretext for bringing complaints.

The logical extension of the harassment clause, as it stood, was that total secularisation had to take place. One only has to look around to see the damaging consequences that that would have for the majority religion in this country. What would also be really damaging is that the entire structure of the Bill, which I support in its broad terms, would be destroyed. Public support for it would disappear, so we have to get it right.

I said a moment ago that paragraph (k) provides for some exceptions, particularly in respect of educational institutions:

''acts of worship or other religious observance organised by or on behalf of an educational institution (whether or not forming part of the curriculum)''.

The problem is that large numbers of public authorities are not educational institutions. I question whether the Middle Temple, my inn, is an educational institution. It may arguably be so; that may be its let-out clause. But it still remains problematic, and I remain anxious about it. I want to listen to what the Minister has to say on the matter.

While the harassment clause has gone, and some of the more extreme examples with it, I remain concerned that it could still be argued that a public authority is behaving in a discriminatory way because the benefits it provides could be argued to include the opportunity of religious observance in a corporate framework. If that religious observance were being offered in a way that favoured only one faith, it would be said that it could not do so in those circumstances.

The Christian Institute was also anxious, as the Minister is aware, that the measure could affect the decisions of public authorities, such as hospitals, to provide a Bible in the drawer by the bed or to have a chapel on the premises. Again, these institutions are not overtly religious, although many have religious origins. Nevertheless, they have accumulated a spiritual dimension over the years that reflects the mainstream majority religion in this country.

This is an important issue. I am fairly certain that the Government do not intend the result of the provision to be the disappearance of Bibles from bedsides in hospitals, the closure of hospital chapels, corporations prevented from having annual civic services or public authorities prevented from saying grace before meals at corporate functions. As I am sure that that is the case, I need to know, and the Government need to persuade me and perhaps others, that that cannot happen under the Bill as it is drafted. At the moment, there is scope under the Bill to argue that it should happen. Even the process of a legal challenge in such circumstances troubles me because of the impact that it would have on the credibility of the legislation. I look forward to hearing from the Minister on that point.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I rise briefly to stress the point that I made earlier that most of the concern related to the fact that the initial definition of harassment in the Bill was so wide that it almost invited people to take legal action, if they so wished, and possibly to succeed in doing so.

I hope that the discrimination law review will consider more carefully a definition of harassment that gives people scope to express themselves, even at the risk, within reason, of offending other people. It should be made clear that simply doing something that another person considers to be an affront to their dignity should not be sufficient to be considered unlawful. No one wants inter-religious strife, but it is probably better to allow freedom of expression than to stifle it either deliberately or inadvertently through such a wide statute.

The hon. Gentleman's amendments would, however, have a greater effect than the effect that he has just described. He tabled new clause 13, but did not speak to it. I wonder whether that is because he recognises that it is not wholly satisfactory as it singles out certain religious symbols of one religion.

Dominic Grieve (Conservative, Beaconsfield)

I explained that new clause 13 was the Christian Institute's draft. It is an important draft, because it immediately brings to the attention of the Committee the sorts of areas that are causing the institute particular concern. Amendment No. 138, which I drafted, would cover all those points adequately and in rather more neutral language. It is not necessary for Parliament to legislate in rich language; in fact, it can do so in simple terms. That is why I drafted the amendment as well as tabling new clause 13.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I certainly commend the hon. Gentleman on his drafting. Amendment No. 138 is clearly better than new clause 13, and I accept his point that he spoke to amendment No. 138 for that reason. New clause 13, as drafted by the Christian Institute, shows the sorts of sensitivities involved, but it is a self-defeating argument. The institute clearly has strongly held views and sincere reasons for putting those points, including the fear that minority religions will call for the removal of the things that they find offensive.

The hon. Gentleman makes valid points about his amendments. The Minister knows that I generally speak from a non-religious point of view. Does the Minister think that, if a local authority decided to spend public money on bringing in a religious person to lead prayers at the beginning of every meeting, it would be satisfactory if staff and members of the council, trying to discharge their public function from their preferred place, were let into a room only if they were of the right religion or willing to sit through a religious service in a local authority meeting?

I am prepared to say that I would not want us to go any further than we already do in some legislatures in this country in respect of making specific provision for the booking of seats on the basis of participating in or sitting through a religious service. Indeed, I might argue, although not now in this Committee, that we should draw back from that. I hope that the Minister will be robust enough to say that there is a limit on what public authorities can do in respect of getting into specific single religious issues. Clearly, multi-faith forums and provisions particularly for the Christian heritage of the country, as the hon. Member for Beaconsfield puts it, are reasonable so long as they do not disadvantage individuals and subject them, to use the Minister's term on another part of the Bill, to a detriment. A person can choose not to take the Bible from a hospital drawer. They can also choose to take it. There is no way, in my view, that that could be considered as discrimination, far less harassment on any reasonable definition of harassment.

I would like to give some encouragement to the Government in making it clear that public authorities, particularly when spending public money performing a public function, should be careful that they are not causing a detriment to people on the basis of their religion. That leaves a lot of scope for cultural activity, some of which will relate to a faith or be multi-faith, but also indicates the point beyond which it would be considered not reasonable to go. I look forward to the Minister's response to the debate.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall deal with amendment No. 138 and new clause 13. First, it might be helpful if I respond to some of the general points that have been made, not least by the hon. Member for Beaconsfield, because it is important for hon. Members to have constant regard to what is happening on this issue, as on many others, in the communities that we represent. A number of things are happening and they are interrelated.

Surveys of people's adherence to particular religious beliefs and institutions show that such adherence remains at a very high level. The vast majority of people in this country regard themselves as members of a particular religion or faith community. At the same time, as the hon. Gentleman is right to point out, we live in an increasingly secularised society, so despite the high level of adherence to formal religion, there is an ongoing process of secularisation. An increasing number of people identify themselves in terms of their religious belief and religious community. The fact that we are debating part 2 of the Bill reflects that and the need to protect people from discrimination on those grounds. All three elements run together and there is an interplay between them. We need to have regard to that.

What comes out of the debates that ensue from that is sometimes not helped by the misinformed reporting of some stories that we see constantly dripping through the media. One of the latest examples was the rumour put around in various newspapers that the Home Office had withdrawn funding for a carol service at St. Martin-in-the-Fields for crime victims. That story was complete nonsense. There was never a proposal to withdraw funding, but of course the Home Office wanted to be sure about the range of victims of crime who were being invited to that event order to ensure that everyone was sufficiently and properly engaged.

Such stories play into potential prejudice and the lack of information, which does not help. Our responsibility here is to clarify the issues wherever we can. It is important to recognise the need to ensure that public authorities can support the religious needs and wants of the people whom they serve, in a way that balances protection for people of other beliefs as well. We do not seek to prevent local authorities or any other public authorities from being involved in carol services, celebrations of Diwali or other religious activities in which they feel it is right for them to be involved. The hon. Member for Beaconsfield pointed out that these things evolve over time and that there is now a broader range of religious faiths and activities than perhaps was the case in the past. We do not think that this part of the Bill stands in any way against that trend. We feel it is right—this is in some measure a response to the hon. Member for Oxford, West and Abingdon—that public authorities should treat people of all faiths and none fairly. That is the limit that I would place on this.

Whether amendment No. 138 is better than new clause 13 is a matter for members of the Committee to judge for themselves. I believe that it tips the balance unfairly. It would have the effect of allowing a public authority to support one religion by organising worship and maintaining places of worship, while refusing, under any circumstances, to do the same for others. There should be chapels in our crematoriums, hospitals and elsewhere and they should be properly maintained for those who wish to use them. We believe that the authorities providing such facilities should be reasonably flexible to the needs of those who need and want to use them.

Dominic Grieve (Conservative, Beaconsfield)

It is a bit harsh to say amendment No. 138 would almost encourage discrimination. Just as in other clauses that provide exceptions—we discussed the security services, who will not take it as a blank cheque to go out and practise discrimination—the removal of these functions of a public authority from the clause is not designed to present a blank cheque to do the same. It is simply that this is the only mechanism apparently available in the Bill to remove the possible impact of the duty under subsection (1). The problem is not the exception, but whether that subsection prevents those things from happening.

Paul Goggins (Labour, Wythenshawe and Sale East)

I apologise to the hon. Gentleman if he feels that I am being unduly harsh. My argument is with the way in which the provision would make a preference for one religion that must be provided for, without making provisions for other religious beliefs. I say it slightly more gently: he has tipped the balance a little too far in amendment No. 138. Others would argue that he tips it severely in new clause 13.

Dominic Grieve (Conservative, Beaconsfield)

The Minister will know that one of the distinctions between new clause 13 and amendment No. 138 is that amendment No. 138 is faith neutral. The phrase ''the Christian religion'' does not feature in it. The amendment simply says that subject to the other duties on the public authority, the three possible provisions allow a public authority latitude and discretion to support a particular faith and possibly even several faiths if it wanted to do so. The amendment says, however, that the authority cannot be challenged just because it decides to sponsor an act of worship or religious observance organised on its behalf.

Paul Goggins (Labour, Wythenshawe and Sale East)

I simply say again gently to the hon. Gentleman that his amendment No. 138 sets in stone rather too severely the ability of a public authority to support and encourage particular religions and religious beliefs and not to respond to others. Our argument here is that public authorities have a duty to respond to the various needs of the religious beliefs of the communities that they serve. Just because a public authority provides a chapel or a service for one community, does not mean that it has to provide that service for all religious beliefs and all religious communities. It may not be necessary in a particular locality for that service to be provided. But it is perfectly in order for such provision as is deemed suitable and appropriate to be made. There is a balance to be struck and that is what we seek to uphold.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to hear the Minister say that. That is exactly what I thought he would say, and exactly what I want to hear him say. I have to contrast that comment about what a public authority can do with the plain terms of the clause. By saying that it cannot discriminate, subsection (1) seems to me to lay itself open to the possibility of a challenge, because somebody can say, ''You are a public authority and you support an annual Christian civic service. I am a Muslim and I object to that.'' What happens then? Perhaps the Minister will take the Committee through what happens next when that challenge is raised. I think that he is saying that the public authority could argue, ''Our decision is reasonable and proportionate in all the circumstances,'' but that involves a public authority in potential litigation from which I believe that it is entitled to be protected.

Paul Goggins (Labour, Wythenshawe and Sale East)

Careful judgments must be made. Public authorities should have proper processes for deliberating on such matters: they must gather information and then make decisions. It is perfectly reasonable for a public authority to have differential provision for different faith communities, if that provision can be justified by reference to matters other than the religion or the belief. If the individual Muslim to whom the hon. Gentleman referred is the only person of that religious persuasion in a particular community, it might be disproportionate to expect the public authority to make the same provision for him as for vast numbers of people elsewhere. Public authorities cannot be expected to provide the same level of support and service to everybody, irrespective of financial and other considerations. The differentiation there is not on grounds of religion or belief, but on other rational decisions about resources and what is proportionate in the circumstances.

I understand some of the nervousness and concern, and to some degree share it, but I hope that the guidance that we produce will clarify many of these matters, so that we can bust some of the myths that have grown up.

I say clearly and categorically that I am a Christian. I celebrate this country's Christian heritage, but the best way to protect that heritage is not to seek to give greater protection in law to the beliefs of Christians than to those of others. New clause 13 is not necessary, because what it addresses is not and should not be a problem. Bibles and other Christian symbols need not be removed, as people fear they will be. Public authorities must respond to the needs of the religious communities that they serve. Community relations could be damaged if we singled out the Christian faith for added protection. It might appear that we were afraid that religious symbols might be banned by the Bill, and that we wanted to protect Christian symbols alone. We do not want to do that. Equally, we do not want Christian symbols to be thrown out and disregarded, when many consider them to be important.

For the second time in today's deliberations, the hon. Gentleman has treated us to accounts of events at the inn of court of which he is a member. He sought some clarification, and I hope that I can help him. The inn of court would be a public authority only when carrying out functions of a public nature. Therefore, it is not in itself a public authority. Those running the inn of court would be discriminating only if they refused to provide public functions for a person because of that person's religion; refusal would be clear discrimination. It would be indirect discrimination only if, for example, they insisted on people saying grace before they received the public function. I hope that that helps to clarify the position for the hon. Gentleman.

I acknowledge that we need clarity, and I hope that the Bill will help to provide that. I hope that the guidance will help to enhance our understanding and that the rational and reasonable discussion and reporting of these matters will reflect a proper balance. Saying grace is one thing; compulsory baptism for all service users would be something else entirely. We must have an understanding—

Dr. Harris rose—

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman has a habit of knowing when I have only three words left to say.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not want to delay the debate by making a separate contribution, so I will limit my remarks to a few seconds. Where would the Minister say provision by a legislative authority to give preference in seating locally to those who participate in some way in a religious service would fall? Would it be on the compulsory baptism side or on the side of what he described as harmless? People may have to deal with such issues every day; indeed, members of the Committee themselves may have to do so. Surely on such difficult issues the Minister should be able to give us an idea of where the Bill will leave those distinctions.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall certainly not recite the list of examples this afternoon, much as the hon. Gentleman may wish me to. It will be necessary to use common sense and to understand the local context—the people involved, the nature of the communities being served and so on. Those things will matter and will require mature, sensible judgment. There is no one-size-fits-all formula that we can deploy in every circumstance. We need proper respect for all faith communities and a realisation that public authorities must respond to their needs as best they can.

I suspect that the amendments play on unfounded fears. This has been a good debate, and I think that some of the fears of the hon. Member for Beaconsfield will have been allayed. I hope that he feels able to withdraw the amendment.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister, who has gone a considerable distance towards allaying the fears. I tabled new clause 13 precisely because I was conscious that others have greater fears than I do and feel strongly on the issue. Therefore, I wanted to make sure that the matter could be fully and properly debated in Committee.

The Minister provided considerable reassurance, but I remain troubled. We must face the fact that we live in a litigious age. People's tendency to use the courts to assert rights, often in perfectly trivial matters, appears to be a growth industry. Once one provides an opportunity for that to happen, experience suggests that people come along with agendas of their own and seek to prevail. We are living in a society that in many respects is in rapid transition, and there seems to be a willingness to use the courts and to behave in a rather un-neighbourly and unnecessary way to assert rights.

Therefore, I do not entirely share the Minister's confidence. In fairness, I think that he accepted that one consequence of the Bill may be that legal challenges will be made. We shall have to rely on the common sense of the judiciary to ensure at an early stage, as has happened before, that unreasonable challenges are thrown out of court so that a reasonable and happy mean is maintained.

I have some anxieties, because I believe that the Government may have to face the consequence that if institutions that are essentially non-denominational or non-religious in nature but maintain elements of Christian heritage begin to feel threatened, some of them may decide to convert themselves into more overtly religious organisations. There is an issue here, as we try to find the happy mean that enables people to live together in harmony. As a lawyer I have to say that, on the whole, harmony does not come through the courts. I try to dissuade people from litigating, and I am sure that other members of the Committee with a legal background will agree. It is a weapon of last resort, not of first resort. I have an anxiety that the provision will give rise to unnecessary litigation. I understand the Government's position, which is not unreasonable, but if the provision is used in that way, we shall have cause to regret it.

I shall consider the matter, and if I can come back on Report with something that might be helpful to maintain the thrust of what the Government are trying to achieve and to provide a safety net of sanity, I shall return to it. For the moment, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 122, in clause 51, page 34, line 7, leave out paragraph (c).

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments:

No. 123, in clause 51, page 34, line 9, leave out paragraph (d).

No. 124, in clause 51, page 34, line 11, leave out paragraph (e).

Dominic Grieve (Conservative, Beaconsfield)

I was so absorbed in the last debate that for one moment I half forgot what the next one was going to be. With these amendments I simply seek clarification. Clause 51(6) is quite complicated, but if I understand it correctly, it provides circumstances in which clause 69(4)

''shall not apply in relation to a reply, or a failure to reply, to a question in connection with an alleged contravention of this section''.

Paragraphs (a), (b) and (c) are about people's legal rights, and I have no great difficulty with them. However, paragraphs (d) and (e) are slightly more complicated, because they specify that exceptions may exist so that an organisation will not be required to give a reply to an allegation of discrimination,

''(d) where the reply is given in circumstances specified for the purposes of this paragraph by order of the Secretary of State, or

(e) where the failure occurs in circumstances specified for the purposes of this paragraph by order of the Secretary of State.''

That is a let-out clause, which in certain circumstances allows the Secretary of State to protect public authorities from compliance with clause 69, which, as I mentioned, is about the provision of information, usually as a prelude to litigation. I should like to know from the Minister why those two paragraphs are there, why the Government think that exception necessary, and how it will be exercised.

Paul Goggins (Labour, Wythenshawe and Sale East)

I hope that I can reassure the hon. Gentleman. We want to see requests for information by people who believe that they have been the victims of unlawful discrimination to be acted upon as speedily as possible. If somebody sets out to frustrate the pursuit of requests for information in those circumstances, or to avoid providing the information, that would be a serious matter.

Mr. Grieve rose—

Paul Goggins (Labour, Wythenshawe and Sale East)

I have already excited the hon. Gentleman.

Dominic Grieve (Conservative, Beaconsfield)

I only wanted to say that I mistakenly referred only to paragraphs (d) and (e), but I also have an amendment referring to paragraph (c), which says:

''where the reply is of a kind specified for the purposes of this paragraph by order of the Secretary of State''.

They are all in the same generic group, but I wanted to get that on the record.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman for clarifying that point. I should like to underline my opening remark—that we want people who believe that they have been discriminated against, and who need information, to get it as speedily as possible. It would be wrong for anybody to stand in the way of that without justification.

The provisions enable the Secretary of State, who has the duties, to set out on what forms and in what manner questions should be asked, to specify a form that may be used for replies, and to specify circumstances in which inferences of discriminatory conduct should not be drawn from a failure to use properly the arrangements that he has made. We are talking here about a practicality. For example, if an inquiry is sent to the wrong person, the court should not be able to infer that discrimination has occurred simply because the request has gone to the wrong person, so there has been a delay in the reply. I hope that the hon. Gentleman appreciates that. Sometimes poor administration will be to blame. Although poor administration is to be deprecated and dealt with, it should not be left to a court to assume that discrimination has occurred just because of it. That is what the provisions are about. This is not a get-out clause, but it means that discrimination cannot be assumed if poor administration is the real culprit.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his reply. Bureaucracies are always—dare I say it?—good at protecting themselves, and this seems to be another example of that. I have to accept that bureaucracies do not necessarily function at 100 per cent., so the Minister may have a good argument. However, it is slightly telling of the Government's lack of confidence that they are going to be told to comply with their own regulatory framework. I would prefer it if those provisions were not in the Bill at all, but I shall go away and reflect on what the Minister has said. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

The hon. Member for Oxford, West and Abingdon has indicated that he wishes to raise a particular issue, which is also covered by new clause 16. It is appropriate for the matter to be raised under this clause, but the hon. Gentleman will appreciate that I do not expect a repetition of the arguments should we reach new clause 16.

Question proposed, That the clause, as amended, stand part of the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Thank you, Mr. Gale. I was aware of the fact that the matter was covered in two different places, having discussed it with the Clerk. Indeed, I had vaguely hoped and/or expected that the new clause might have been taken under this clause or an earlier one that dealt with school transport, but for reasons that I never understand because it is beyond my capacity to do so, the grouping was set out as it has been. As we always say, I am sure that that was the correct decision.

I shall not dwell on the issue of guidance because the new clause refers to the need for guidance to be issued, but I draw the Minister's attention to school transport, which is mentioned in this clause and a previous one. The Minister will be aware that the issue of school transport and the related exemption is found in subsection (4)(k)(v). The prohibition on a public authority exercising a function to carry out any act that constitutes discrimination does not apply to action in relation to transport to or from an educational institution, which is also dealt with under clause 50(2)(b) concerning the exercise of an authority's functions in relation to transport.

I am not arguing that schools that may choose pupils on the basis of their parents' religious adherence should not arrange transport when they are beyond where those pupils would usually go to school. I am not arguing that that is wrong. My point is that the process should be exercised fairly and in a non-discriminatory way with regard to all people who find that because there is discrimination in admissions on the basis of religion—or a lack of it—they are faced with extra journeys. One would have thought that this matter was straightforward. The Bill should treat equally anyone who, on the basis of their parents' belief or faith or lack of either, has to go further than is indicated to get to school because the school nearest to them—in the range that they would not qualify for subsidised transport—is of the wrong faith or no faith. That is not a difficult concept for the Bill, the guidance—to which I shall come on another occasion—or the explanatory notes to specify.

The failure of the explanatory notes to make that absolutely clear is remarkable. This is evident in, for example, paragraph 186 of the explanatory notes, dealing with clause 50, and paragraph 192, which refers to clause 51. I shall refer to the latter, but they are pretty much identical. It states:

''Transport—an LEA or other responsible body can arrange transport to a faith school for those pupils who live a distance away and they will not be obliged by this legislation to provide a similar service for pupils at another faith or non-faith school.''

Heaven help the parent with no religious belief, an atheist or humanist, who does not want their child to go to the local faith-based school and wants their child to participate in the subsidised or free transport scheme made available—allegedly in a non-discriminatory way—for children to travel further than the distance they would normally because of faith-based discrimination in admissions. That may not happen frequently; non-religious parents might not avail themselves of the freedom not to have their child educated in a faith school as frequently as parents with religious views chose not to have their child educated at a school that does not have a faith ethos or discriminate for admissions on grounds of faith. Nevertheless, we know that it happens. Evidence was given to the Education and Skills Committee when it considered the draft School Transport Bill that suggested that that was a problem.

I will not go into the Committee's conclusions because they relate mainly to guidance, but it agreed that there was an issue. It was well identified that the problem was not only that children of non-religious parents, who wanted to get on the bus that passed them for the same price as the children of religious parents, were not allowed to do so without paying to go a similar distance in the same direction, but that in many cases the local authority at no point—I would be interested to find a local authority that did—told such parents that they were entitled to ask for and receive subsidised transport, if they qualified on the basis of a belief that was not religious. The test should be the same. If there is a test for genuineness of religious belief and the allocation of transport, there should be some test for genuineness of non-religious belief. In neither case is it a particularly difficult test to pass. I do not see why people should have to go out of their way as a religious parent does not to prove their atheism. As long as the tests are equal, that should apply.

Part of the problem stems from the original legislation. The law on school transport is contained in the Education Act 1996. Section 509(4) states that when LEAs are considering whether or not to make discretionary transport arrangements in relation to a particular person, they are required, among other things, to have regard 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.''

That should be read in a non-discriminatory way and the same should apply to non-religious parents. Although the wording of the Bill should be clear, the fact that the explanatory notes encourage local education authorities to apply the provision in a discriminatory way is extremely disappointing.

I hope that the Minister will recognise that if local education authorities continue to fail to let people know that they can access such transport and to deny subsidised transport to children who are going further than usual in order to avoid a faith school at the wish of their parents, there will be human rights challenges. Legal action has been taken, as the Minister knows. If we have an opportunity to debate guidance, I shall go into that in more detail.

I hope that I have made the point as clearly and politely as I can. I feel strongly about it, because I have had representations from people I know who feel that as the explanatory notes make such an error, if it is an error—and if it is not, it is even worse to feed such discriminatory practice—LEAs will continue as they are doing and we will not make progress. The Bill is an opportunity to sort that out once and for all, if we are to have the sort of education system where schools can choose on the basis of religion. I hope that the Minister can give me some encouragement in words and action as to how we will deal with the problem.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall be as encouraging as I possibly can. The hon. Gentleman has been threatening us with the subject of school transport on and off throughout the course of our deliberations today, so I am pleased that he has had the opportunity to get it off his chest.

Local education authorities have a statutory requirement to provide free home-to-school transport for certain pupils. They also have some scope to decide when transport is necessary in other circumstances. They will consider each pupil's case on its merits, taking account of all the relevant factors, which will include a parent's wish for their child to attend a school of the religion or denomination to which they adhere. That discretion means that local education authorities often provide subsidised transport for pupils of faith schools that are located outside the local area. The Bill contains an exemption to ensure that that practice can continue, otherwise local education authorities would be vulnerable to challenge on transport policies that take into account the historical distribution of religious schools, which were often built outside town centres.

Local education authorities may also—in our view they should—provide subsidised transport to a non-faith school for children whose parents are strongly opposed to their attending a faith school that happens to be closer to home. That would also be unlawful if it were not for the exception in the Bill. The exceptions need to be there in order to enable local education authorities to continue to operate such policies. I do not know whether that is helpful to the hon. Gentleman, but that is what we seek to achieve. Those who choose to travel further to go to faith schools should be able to do so, and those who wish to go to a non-faith school because the nearest school has a faith dimension or an ethos to which they do not want to adhere should be able to travel there too. It is important to enable local education authorities, which are responsible for such policies and their implementation, to exercise their functions properly.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We are in complete agreement on the Minister's last paragraph. I would not argue, and have not proposed an amendment, to remove that provision. I understand that it is needed to avoid challenge. However, even in the explanation that he has given, the Minister has unnecessarily separated a school pertaining to the religion or denomination of the parent. When he says that, why can he not also say ''or lack of it, or philosophical belief'' so that it is clear in everything that he says that the provision should be exercised in a way that does not discriminate between faith and non-faith?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Gentleman is right. The measure should operate in a non-discriminatory way. I regret it if my remarks were not as comprehensive as they should have been—the provision applies equally in the way that he has indicated. It is important that local education authorities should be able to continue to exercise their function properly in that respect. It is too late to consider the explanatory notes; they have nearly served their purpose. However, we will make such issues abundantly clear in any guidance that we issue with the legislation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Does the Minister believe that there is a problem with the explanatory notes? If he does, I will be more relieved and more reassured. If he thinks that those notes, which mention only arranging transport to a faith school, are correct and capture the idea of non-discrimination, I cannot be reassured; there is still some distance between us. If he would comment on whether the explanatory notes are in error, that would be helpful for those who later read this debate. Otherwise, they might look only at the explanatory notes.

Paul Goggins (Labour, Wythenshawe and Sale East)

I need to come back to the hon. Gentleman on the accuracy of the explanatory notes. I have tried to make it clear that a family that has chosen a school that is at a distance from home because of a particular religious belief should be able to be supported by a local education authority, just as should a family that does not wish to go to a religious school that happens to be the closest to home because of the ethos of that school. I have been as clear as I can.

Ours is an even-handed approach and I believe that it is right. In the end, it is for local education authorities to carry it through. We cannot and should not pass legislation that would oblige local education authorities to follow a discriminatory course. We have to include exceptions that enable such authorities to function properly. If I can ensure that the guidance that ensues from this legislation is clear, I shall seek to do so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I thank the Minister for his remarks. He has a reputation for going as far as he can to meet hon. Members' concerns during the Committee stages of Bills, and he has done so here.

I should like to make two points. I hope that we will have the opportunity to return to the question of guidance under another clause and that the Minister and his staff will have had time to look at the issue to see whether he can offer us something. In particular, I flag up the recommendations of the Joint Committee on Human Rights and the Education and Skills Committee regarding the validity of the current guidance.

Secondly, I have had a message from the experts on this issue, who tell me that had I tabled an amendment to remove school transport, we could probably have dealt in this debate with the issue of guidance raised by my new clause. To be true to my view, however, I did not group those provisions together and I apologise for the fact that we will have to revisit the issue. In the light of the Minister's comments, however, I hope that when we do so, we will be briefer than we might otherwise have been.

Roger Gale (Conservative, North Thanet)

I am sure that we will be.

Question put and agreed to.

Clause 51, as amended, ordered to stand part of the Bill.

Clause 52 - Discriminatory practices

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 125, in clause 52, page 34, line 36, leave out 'be likely to'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 126, in clause 52, page 34, line 38, leave out subsection (2).

Dominic Grieve (Conservative, Beaconsfield)

Subsection (1) of the clause says:

''It is unlawful for a person to operate a practice which would be likely to result in unlawful discrimination if applied to persons of any religion or belief.''

Subsection (2) says:

''It is unlawful for a person to adopt or maintain a practice or arrangement in accordance with which in certain circumstances a practice would be operated in contravention of subsection (1).''

I have tabled two probing amendments, one to each subsection. The first inquires as to the use of the word ''likely'' in subsection (1)—the Minister and I seem to bandy the word about quite frequently. I seek clarification on whether taking it out would make a huge difference; otherwise, I do not object to subsection (1).

I have slightly greater reservations about subsection (2). I appreciate that it might be useful for the commission to take pre-emptive action, and that is what subsection (1) is about. However, subsection (2) takes matters a stage further, because it would allow the commission to interfere in respect of a

''practice or arrangement . . . which in certain circumstances . . . would be operated in contravention of subsection (1).''

That is a pretty sweeping power. In our courts, generally speaking, we give people remedies when something happens; we do not give massive powers to launch speculative pre-emptive strikes. I therefore wonder whether subsection (2) is necessary for the proper enforcement of this part of the Bill.

Paul Goggins (Labour, Wythenshawe and Sale East)

Although this also relates to other aspects of the Bill, it is worth saying that the discrimination law review will consider many of the issues on which we are touching and we need to set our remarks in that context.

The Government tabled amendments in the other place to bring the clause more closely into line with the equivalent provisions in other discrimination law, including the Race Relations Act 1976 and the Sex Discrimination Act 1975, by restricting its application to practices that would be likely to result in indirect discrimination. We should pay tribute to the work done by colleagues on all sides in another place to improve the Bill in that regard.

The intention of the discriminatory practices provision is to enable the Commission for Equality and Human Rights to prevent unlawful discrimination by bringing proceedings in situations where no actual complaint has yet been received, but where unlawful behaviour might occur if such practices continue. Of course, we hope that the commission, through its advocacy and proactive work, will seek to persuade those who might adopt such practices that they are heading down the wrong track and need to mend their ways. Amendment No. 126 would remove that ability entirely.

Amendment No. 125 would allow proceedings to be brought only when the CEHR could show that unlawful discrimination would definitely occur as a result of the practice concerned, and not when it was only likely to occur. If a person could show that discrimination would definitely occur, then by the time that action was brought, the discrimination would probably have occurred. The person would then have a real case, and would not need to take the preventive approach that we are providing under the provision.

In deliberations with the hon. Gentleman on other Bills, I have learned a lot about the word ''likely''; I understand that it means ''probable'' in legal terms, but even so, it does not mean ''definite''. It is important that we retain the power in the provisions.

Dominic Grieve (Conservative, Beaconsfield)

It is noteworthy that, in subsection (2), ''likely'' has not been used. The Government have not suggested that the CEHR should be able to intervene when it thinks that someone is adopting or maintaining

''a practice or arrangement in accordance with which in certain circumstances a practice would be''

likely to be

''operated in contravention of subsection (1).''

There was clearly hesitation about extending the meaning to ''probable'' in that case. There has to be certainty. That is one reason why I thought it right to seek to amend subsection (1). Would the Minister like to comment on that?

Paul Goggins (Labour, Wythenshawe and Sale East)

Perhaps the best thing to say is ''Good spot!''. Clearly, I shall have to consider the hon. Gentleman's remarks on whether the word ''likely'' should occur elsewhere. If it does, I shall need to table an amendment. I hope that that will not be necessary, but as he raises the matter, I will consider it further.

Dominic Grieve (Conservative, Beaconsfield)

As I indicated, these are probing amendments. I am grateful to the Minister for his reply, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 ordered to stand part of the Bill.

Clause 53 ordered to stand part of the Bill.

Clause 54 - Instructing or causing discrimination

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 127, in clause 54, page 35, line 27, leave out subsection (3).

I have nothing against the clause, but is there a difference between causing and inducing someone to do something? In fact, I probably made a mistake in my amendment: if any subsection needs to be deleted, it is subsection (2), because I think that inducing encompasses causing, although it is just arguable that causing does not encompass inducing. Whichever way round it is, I should be jolly grateful if the Minister would tell me why both subsections (2) and (3) are thought necessary. There is perhaps a certain amount of overkill here. If a person induces, or attempts to induce, someone to do something, they are causing, or attempting to cause, someone to do something.

Paul Goggins (Labour, Wythenshawe and Sale East)

I look forward to further discussions about amendments that have not been tabled. It might help if I set out briefly what subsections (1), (2) and (3) cover.

Clearly, it is wrong to instruct someone to do an unlawful act—I do not think that anyone disputes that—and that is covered by subsection (1). It is also clearly wrong to cause someone to do an unlawful act; that, we believe, requires a significant degree of influence. It is clearly wrong for people to influence others in that way. That is covered by subsection (2). We say that persuading a person to do an unlawful act, even when one has no power to cause them to do so, is wrong, too. The distinctive aspect of subsection (3) is that it deals with the fact that a person need not have the power to make discrimination happen in order to encourage it. We should not allow people to encourage unlawful behaviour.

The hon. Gentleman may feel that we have gone in for overkill, but I think that we are making sure that every angle of the issue is covered. I would have thought that he would be enthusiastic to make sure that there were no loopholes through which people could wriggle. The provision is genuinely an attempt to eliminate the possibility of people influencing others to do unlawful things. Through the three measures that I have just set out, we seek to cover each and every angle, so that no one can escape the law.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for his response. I can understand his reasoning, but I did not infer that ''cause'' required the exercise of a power to make something happen. The Minister confirms what I already thought: that inducing encompasses causing. To that extent, what I said originally was right. The phrase

''it is unlawful for a person to induce''

would also cover subsection (2). While I am a great believer in keeping legislation short—the Bill runs to 82 pages—and the impact of the provision might be sufficiently marginal for us not to worry about it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 ordered to stand part of the Bill.

Clause 55 ordered to stand part of the Bill.

Clause 56 - Organisations relating to religion or belief

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 40, in clause 56, page 36, line 41, leave out 'imposed' and insert 'reasonably justified'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments: No. 41, in clause 57, page 37, line 10, leave out 'imposed' and insert 'reasonably justified'.

No. 42, in clause 58, page 37, line 28, leave out 'imposed' and insert 'reasonably justified'.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This is an important group of amendments because it goes into the test that needs to be applied to whether continued discrimination—discrimination after the Bill is enacted—will be considered legitimate. The matter was debated only briefly in the House of Lords because of time constraints. The amendments would amend not only clause 56, but clauses 57 and 58, which set out the circumstances in which religious organisations, charities and educational institutions are permitted to restrict their services or activities on the basis of religion or belief.

Obviously, some exceptions from the ban on discrimination are necessary, but it is important that they are not too widely drawn otherwise we would achieve very little. The Minister will be aware that previous versions of the Bill required a restriction to be imposed because it was necessary. That provision was then broadened to a restriction being imposed because it was expedient. Religious organisations objected to ''necessary'' because it seemed to be a solely objective test. Other organisations, such as the British Humanist Association, objected to ''expedient'' because it was too wide. Clearly, expediency is a huge catch-all, and I agree that such a subjective test would be outrageous because it would enable anything to continue.

I read in the Lords Hansard that even a bishop agreed that ''expedient'' was too wide a description. The Government have gone further than was necessary to meet the concerns expressed by religious and faith communities that they could not continue to discriminate in the way that they would want. That is not the first time that the Government have gone too far.

The current Bill has dropped any such test. Clause 56 states that

''subsections (3) and (4) permit a restriction only if imposed . . . by reason of or on the grounds of the purpose of the organisation, or . . . in order to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''

In the other place, Baroness Whitaker proposed amendments similar to mine to replace ''imposed'' by ''reasonably justified''. I hope that the Government agree that ''reasonably justified'' is weaker than ''necessary''.

Baroness Scotland defended the original wording and said that it

''requires that there must be causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend . . . would provide a test which would be less easy to apply. For that reason the wording providing by the draftsman is, in our respectful view, to be preferred.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 676.]

I question, however, whether the word ''imposed'' is a test of reasonable justification.

I do not believe that the provision is well balanced between strict necessity and expedience, and neither does the British Humanist Association, which briefed me on this. The problem is exacerbated by ''on the grounds of'' in subsection (5)(a). Who decides what the grounds are? That will be highly subjective, and if a religious organisation claims that its purpose is based on those grounds, there is no test of reasonable justification to decide the matter.

In human rights terms, there must be objective justification for continued discrimination, and I fear that the wording in the parts of the legislation dealing with discrimination is inconsistent with what was accepted as a reasonable basis for statute in the Human Rights Act 1998, which provided that there needs to be objective justification of a potential breach of article 14 in relation to the enjoyment of other convention rights.

Subsection (5)(b) is also very weak. It says that

''subsections (3) and (4) permit a restriction only if imposed . . . in order to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''

I remember debates with, I think, another Minister on the Employment Equality (Sexual Orientation) Regulations 2003 when a late exemption was added, which was contentious enough in itself, which talked about avoiding

''conflicting with the strongly held religious convictions of a significant number of the religion's followers''.

I shall talk about that when I speak to the next group of amendments. The question is whether the test is well balanced without the wording being tightened up in subsection (5)(a) or (b). I do not believe that it is, and I urge the Minister to reconsider it.

We should also consider the contrast between this provision and the positive action taken under race relations legislation to promote the interests of under-privileged people, which most members of the Committee would want, which had to be objectively proven. That was a far greater test than the continued negative discrimination for which this provision allows. On that basis, the current test should be tightened if we are to have a sensible, well balanced anti-discrimination statute, and I urge the Government to tighten it.

Baroness Scotland said in the House of Lords that she believed that the test of reasonable justification would be less easy to apply, but under clause 56 religious and other organisations are required only to state their body's purpose and to say that the restriction or discrimination was imposed on that basis. That is not a test at all. It simply allows for religious organisations to make their defence in whatever way they like without any objective justification.

I understand that the Government have tried to move from expediency to this provision, and I am grateful that they have gone that far, but there must be a more effective objective judgment. The term ''reasonably justify'' is not a new concept for courts to have to apply. The whole basis of the need to justify things objectively is well known, and a reasonable justification cannot be seen to be a whole new area of jurisprudence. As a test, it is reasonably justified, and I commend it to the Committee.

Paul Goggins (Labour, Wythenshawe and Sale East)

Once again, we are discussing where precisely to draw the line in exemptions. Some have argued from time to time during the passage of the Bill that it is drawn too narrowly or too widely. I am, however, slightly confused by the hon. Gentleman's comments because he has given the impression that a massive debate has been raging in another place, which has spilled over to our deliberations. That is not my understanding. He quoted my right hon. and noble Friend Baroness Scotland, who said in Committee that exceptions must be based on something between necessity and expedience. She paid tribute to the draftsmen who produced amendments to reflect that judgment. When those amendments were considered in another place, Lord Bishop of Chelmsford spoke warmly in endorsement of the Minister's comments, and the hon. Gentleman's colleague Lord Lester of Herne Hill said:

''My Lords, I echo that remark and pay tribute to the draftsman and to the Government. This is a suitable way of meeting the points which were raised and I am grateful.''—[Official Report, House of Lords, 19 October 2005; Vol. 674, c. 861.]

It appears that, through a careful process of discussion, consideration and further drafting, the House of Lords Committee arrived at a form of words that was acceptable to all parties. We have benefited enormously from that work because they provided us with a form of words that works well.

The hon. Member for Oxford, West and Abingdon argues in favour of reasonable justification. My concern, among others, is that that would place an undue burden on religious and other organisations that are, necessarily, very small. Those organisations often provide, for example, luncheon clubs, sports groups and other low-key, local, but important services, particularly on occasions such as Christmas or Easter. Many of those organisations do not have formal constitutions, and it is right that they should be able to continue their engagement and involvement with the community without having to worry about restricting their membership to people of the same belief or having to open their activities to all. That is why a definition somewhere between necessity and expedience is one that respects the legislation and the need to tackle discrimination.

This is an area of considerable debate and concern, but there is a growing consensus on the right words. I hope that the hon. Gentleman can confirm that that consensus has been reached in another place. If he is having difficulties, I can provide him with the page number.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am very keen. I knew that I had it, and the Minister could see me hunting through Lords Hansard, which is a pleasure not to be enjoyed at this time of day. Baroness Whittaker moved amendment No. 35, which stated:

''leave out 'imposed', and insert 'reasonably justified'''.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 675.]

Subsequently, Lord Lester of Herne Hill, whom the Minister quoted in support of the Government's position, said, ''I support the amendment.'' There was not the consensus on this matter that the Minister claims. While everyone agreed that the form of words in the Bill was better than ''expedient'', many, including my noble Friend, believed that there was a better way forward.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am grateful to the hon. Gentleman for his contribution to the debate. He holds his views strongly and sincerely. I am the first to acknowledge the assistance that I receive from others, not least those who are in this Room. The hon. Gentleman quoted from column 675. Perhaps I could gently point him to column 861, which reports a subsequent debate when a consensus was found on this matter. I hope that the hon. Gentleman will be reassured that that consensus was reached among the three main parties during their discussions. That is Parliament at its best: arriving at something that is both principled and practical. The work that took place in the House of Lords, of which we are the beneficiaries, gives us the best possible settlement on this matter.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am afraid that the Minister has got the order mixed up. The column to which he referred, from which he correctly quoted Lord Lester's complimenting the draftsmen—as it is polite to do in any event—was from Report stage. The column from which I quoted was on Third Reading. Even in the House of Lords, the order is: Report; Third Reading. As the Minister rightly states, ''expedient'' was found to be not expedient, and therefore another word—''imposed''—was imposed. That was welcomed and, furthermore, there was broad support, not necessarily from the Government, for a new test.

The Minister's answer does not address this significant problem. I would be grateful if he intervened on me to deal with it. How does he justify the fact that the current wording allows a religious organisation to discriminate, not in the way that he provides for, which would be easily covered by the wording that I am suggesting—lunch clubs would be reasonably justified—but against people to whom, for example, they do not want to rent their premises because, as they say, the purpose of their religion is to discriminate against and make life difficult for people of other religions?

To a certain extent, faith is like that. People believe that their religious convictions are right. One hopes that they will be polite about it, but they do not have to be if they believe something strongly and also believe that everyone else, almost by definition, has chosen the wrong path. It is reasonable to discriminate if the purpose of an organisation is to promote one religion over another. I believe that it is not the Minister's intention to allow such discrimination, but I do not understand how his wording, even if it is an improvement on ''expedient'', will prevent organisations that do not have to from discriminating on the grounds that they give.

The Minister is not indicating that he wants to give me any comfort on this point. I do not know whether it is because he cannot, as he realises that religions will state that that is their purpose.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will happily intervene on the hon. Gentleman if he insists. I have done my best to give as full an account as I can of how opinion coalesced in the other place to the point of providing us with the form of words of which we are the beneficiaries. He may wish to consult further on what actually took place, but I say with some confidence that what happened is what I described as happening.

As this is an intervention, I do not wish to go on too long. There must be a causal link, not a spurious one, between the two provisions—that is the point. The legislation must be practical, bearing it in mind how small many of the organisations are, and that we do not wish to overburden them. The principle of the legislation and bearing down on discrimination are, of course, important, but we do not want to strangulate organisations that play a purposeful and important role in many of our communities.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am not going to pursue the argument further—nor ought I. I am grateful that the Minister at least recognises that he cannot defend what I consider to be too wide a get-out by saying that the matter was agreed in the House of Lords. On that basis, we might as well not turn up here, although I do not suggest that too loudly.

I see the Minister's point about the organisations being small, and I guess we shall have to look and see. We may well seek to come back to the issue at a later date. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale (Conservative, North Thanet)

Before we proceed, I should say that I have been told that there will shortly be a Division in the House; I offer that thought.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 43, in clause 56, page 36, line 43, leave out paragraph (b) and insert—

'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the organisation relates.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss the following amendments:

No. 157, in clause 56, page 36, line 43, after 'causing', insert 'serious'.

No. 44, in clause 58, page 37, line 30, leave out paragraph (b) and insert—

'(b) in order to avoid conflict with the strongly held religious convictions or beliefs of a significant number of persons of the religion or belief to which the institution relates.'.

No. 158, in clause 58, page 37, line 30, after 'causing', insert 'serious'.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I can be brief, because my amendment relates to an issue similar to the one just discussed. It queries why the test in the subsection (5)(b) arm of the exemptions is not even as strong as that in the contentious provision in the measure on employment. As I said earlier, that related to the giving of offence to religious organisations with strongly held views and a significant number of members. I come back to my earlier point: without that test, it will be relatively easy for organisations to state, ''This causes offence'' without needing to show that there has been offence to a significant number of people or that the offence is significant.

The paragraph (b) arm of the exemptions allows the organisations to which the clauses apply to write their own exemption simply on the basis of what they say, because offence is a subjective issue. Some of their members might say that they would be offended if people who were not religious followers were able to rent their organisation's premises because such people might do something vicious to sacrosanct or hallowed ground. I do not know what the issues would be, but we know that there is the potential for such problems. I hope that the Minister can justify why he did not use the form of words that were found to be just about acceptable on judicial review in respect of the regulations on employment and sexual orientation, from which I quoted earlier.

Sitting suspended for a Division in the House.

On resuming—

Roger Gale (Conservative, North Thanet)

Before we proceed, the hon. Member for Beaconsfield has told me that he would be comfortable debating amendments Nos. 128 and 129 with this group. I have agreed and the Minister has agreed to that arrangement, because it may facilitate matters, as the debates are rather similar.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful for that, Mr. Gale, as it was apparent that amendment No. 43 touched on the same part of the clause. The hon. Member for Oxford, West and Abingdon was concerned that the expression

''in order to avoid causing offence''

was too wide and would give religious organisations too great an opportunity to behave in an unreasonable manner.

I have a separate anxiety about that expression. It seems to me that the use of the words

''in order to avoid causing offence''

could favour religious organisations or religions that made the most noise. Therefore, the religion that argued most vociferously that offence would be caused would be able to claim the benefit of the exemption and the religion with an underpinning of tolerance could be disadvantaged because somebody might say, ''Your members are not offended by these things. Therefore, we can impose on you something that you are not comfortable with.''

I disagree with the hon. Gentleman. It seems to me to be an area where Parliament strays dangerously. The truth is that what people decide concerns them as a matter of conscience can be unreasonable, and it may seem to an outsider that that is not a reason for preventing them from operating a restriction. The purpose of the clause is to provide protection to organisations that have a religion or belief.

I prefer either amendment No. 128, which I tabled, which would remove the expression

''in order to avoid causing offence''

and substitute

''comply with the principles and practice''

of a religion, or the alternative that I inserted in amendment No. 129, which is

''conform to the religion or belief of''.

I should be grateful if the Minister would respond to that. My concern here is that it is not just because something is offensive that people should be able to claim that they do not want it. They should, in the context of a religion, be able to claim that they do not want it because what is being demanded of them does not conform with their principles and practices. The use of ''offensive'' seems to favour those who make the most fuss, and that is not how the provision should work in practice.

I make one other point in passing. Subsection (4) says:

''Nothing in this Part shall make it unlawful for a minister''.

Should it not specify that it is a minister of religion? While I know that Ministers of the Crown have their ''M'' spelt with a capital letter in the arcane mysteries of drafting, it was not immediately apparent to me when I read the subsection what sort of minister was being referred to.

Roger Gale (Conservative, North Thanet)

I call the Minister of the Crown.

Paul Goggins (Labour, Wythenshawe and Sale East)

With a capital ''M''. Again we are considering where the line should be drawn at which faith groups and religious organisations should be able to claim an exemption. We believe that it is now drawn in the right place, but clearly hon. Members wish to test that further.

I should perhaps illustrate my argument with an example showing why we believe that ''causing offence'' is the right expression. The example is letting a church hall. Under the clause, if a church wanted to refuse to hire out its hall to satanists, it would have to show that doing so would cause offence to Christians. That is a simple and clear test. Immediately the hon. Member for Oxford, West and Abingdon wishes to change the definition in the amendments that he has tabled, he adds complexity to it in three ways.

First, under his test the church would have to show that hiring the hall would conflict with Christian beliefs. Our courts are wonderful institutions, but they are not necessarily geared up to becoming theological institutions. However, they would have to become so to determine whether there was a conflict with Christian beliefs. They would have to understand those beliefs and how they were affronted by hiring the hall to a satanist group.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Why are the Minister and his colleagues content to force courts to make that judgment about the employment, equality, sexual orientation and, if I remember correctly, religion regulations that state inter alia or in part that discrimination in employment is justified by organised religions or religious organisations to

''avoid conflicting with the strongly held religious convictions with a significant number of the religion's followers''?

The courts already have to deal with that, because of statute. If the Minister is saying that it is a new problem, it is not. The provision applies equally to other legislation.

Paul Goggins (Labour, Wythenshawe and Sale East)

I shall think carefully about and reflect on the comments made by the hon. Gentleman. I understand that a great deal of effort has gone into ensuring that wherever possible the legislation before us is consistent with the different pieces of legislation covering different areas of discrimination, whether employment or race relations.

Many propositions in the clauses that we have discussed today are transposed from other legislation from other areas, so if the hon. Gentleman is raising a potential contradiction, I should need to study it carefully. However, I understand that in order to be practical, all provisions have been brought together as comprehensively as possible. I promise the hon. Gentleman that I shall consider his point carefully.

A second difficulty and complexity that the hon. Gentleman adds is that the belief or view must be strongly held. How would anybody assess whether the view was strongly held?

Most interestingly of all, the third complexity is that, in the example I gave, the view must be held by a significant number of Christians. How many Christians should one have to consult? Those that belonged to that particular church, the whole diocese, the rest of the country, the global Church? There is no definition of how one should assess what is a significant number of Christians.

Keeping the provision as a test of causing offence makes matters clear and simple, makes them work in practice and, again, helps to strike the balance between principle and practicality.

Dominic Grieve (Conservative, Beaconsfield)

How would the provision work in practice? Presumably, the test is entirely subjective, so if a religious organisation says, ''If this were to happen, it would cause us offence,'' that is the end of it. Or, could somebody say, ''That is not true. We don't think you really would be offended; that's just a pretext''?

Paul Goggins (Labour, Wythenshawe and Sale East)

That would be the end of it. If a group claimed that offence would be caused, that would be its justification for not hiring out the hall. As with all such matters, they are—[Interruption.] I will give way.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise for muttering from a sedentary position. I shall repeat what I said: how is that different from a simple test of expediency? Clearly, it is a different non-test, but it is a non-test.

Paul Goggins (Labour, Wythenshawe and Sale East)

It is a very clear and subjective test. If something gives offence to somebody, the test is their judgment about its impact on them, their beliefs and their attitudes. That is a clear test. The tests that the hon. Gentleman suggests mean that we should have to conduct a theological test about whether something conflicts specifically with Christian beliefs; and there is another test about the strength of the belief and how many people hold it.

Although I do not deny that the hon. Gentleman's intentions are honourable, by trying to define the precise point at which we draw the line and strike a balance, his definition and way of tackling the matter would add complexity to groups that are not geared up to deal with complexity. That is the point. If we were discussing major global institutions that have the capacity to deal with such things, that would be fine. However, we are often discussing small groups that provide services to local communities and groups. We have to respect that. Although we want to bear down on discrimination wherever it is, we have to respect the practical nature of some organisations.

The wording that the hon. Member for Beaconsfield has asked the Committee to consider in amendment No. 128 would add complexity by its reference to principles and practices. Amendment No. 129 refers to conforming to the religion or belief of people connected to the institution. Again, that would add complexity and could muddy the waters somewhat. The wording of that amendment is unclear particularly because in the case of many institutions the religion or beliefs of some of the people connected to them are different from those of the institution. The existing words make it explicitly clear that the religion or belief of the institution is the key element, not that of any person connected with it. I realise that there are different views and that we are teasing out the issue together, but the settled position currently reflected in the Bill makes the test simple, straightforward and practical. That test honours the principles that we are defending as well as the practicality of making the measure work.

Roger Gale (Conservative, North Thanet)

I have created a difficult situation for myself. Mr. Grieve, if you wish to respond although your amendments have not been moved, you had better speak now or not speak.

Dominic Grieve (Conservative, Beaconsfield)

The Minister has persuaded me that the wording as it stands is right, and I am grateful to him for doing so.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The Minister has persuaded me that I was right to question his wording. I am sorry to move apart from the hon. Member for Beaconsfield, although I suspect that that will not be surprising. I will explain why to the Minister on the basis of his arguments. Religion is not absent from his words, and so a court will have to make a decision on whether an offence is on the grounds of religion or belief. Both he and I realise that although everyone dealing with this legislation—and with religious hatred legislation, sexual orientation and religious employment regulations' exemptions for religious organisations—always says that the last thing we want is for courts to consult theological sources, that is inevitable when it comes to these exemptions. It is in his wording, and to argue that the same may occur with mine is not a good argument.

Secondly, all the Minister's complaints about the courts having to interpret strongly held religious convictions of a significant number are contained in the employment equality regulations on both sexual orientation and religion. I remember that that was in subsection (7) and that a judicial review, which I supported, felt that that went beyond the exemption in the directive that required the regulations to be brought under section 2 of the European Communities Act 1972. The Government scraped through. The courts have already considered the matter and have commented, and there is therefore case law from the High Court. The Minister's arguments are not strong as they apply to the wording.

I am grateful that the Minister said that he will consider what appears again to be a lack of consistency. Later, the employment regulations will be amended in clause 76. I have tabled an amendment that will point out another area where they are not aligned.

The fundamental problem is that the Government seem to have substituted a test of expediency that is completely subjective with another subjective test of someone being offended. It is subject to the same criticism as we would have about a case where someone felt offended by a Bible in the hospital bedside cabinet, forcing local authorities to go round removing them. It is the same problem. We do not accept such cases, which might apply to small providers, and we should not accept the subjective failure to test the basis for the discrimination.

I understand that some of those organisations are small and would rather not change those of their practices that happen to be discriminatory, but that is not a good argument for not legislating. However, one could not describe some of those organisations as small. For instance, the Church of England and the Catholic Church are large organisations.

Finally, I urge the Minister to reflect before Report on the huge difference that exists between not allowing discrimination in race, particularly on such a subjective test—it would offend me to have to ''not discriminate'', yet a weak test is defendable particularly when, as he said, there is a large read-across between faith and race in other parts of the Bill—and other sorts of discrimination. I do not think that it is right to have such a weak test.

This is the first time that I have been less happy after hearing the Minister's usually emollient words than when moving the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment No. 35, in clause 56, page 36, line 44, at end insert—

'(5A) Nothing in this section shall make it lawful for an organisation to which this section applies, and which performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing it is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.

Roger Gale (Conservative, North Thanet)

With this it will be convenient to discuss amendment No. 36, in clause 57, page 37, line 17, at end insert—

'(2A) Nothing in this section shall make it lawful for a person to whom this section applies, and who performs a public function, to act contrary to the provisions of section 51 (1) in the performance of that function unless in so doing he is acting under, and in accordance with, a requirement of a contract with a public authority to perform that function.'.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall try to be quick. The amendments deal with religious organisations performing public functions. I am grateful to the British Humanist Association for its help, and for the efforts of Baroness Turner of Camden and Baroness Whitaker, who spoke in another place in Committee and on Report respectively. They tried to do something about the problem.

Religious organisations and charities as defined in clauses 56(1) and 75(1) are exempted from the duty not to discriminate in certain circumstances. However, such organisations and charities may be carrying out functions of a public nature. For example, they may be providing statutory or other services under contract from a local authority or the NHS. In such circumstances, they should be exempted from the general law, and clarification is needed on whether they will be allowed to discriminate in the performance of such functions.

Amendments were tabled in the other place that would have added new subsections after clauses 56(5) and 57(2). They were similar to my amendments. Ministers in the other place made a fair point in response to the amendments; they said that organisations will sometimes be requested to do something that is discriminatory in effect, such as outreach work for the health service with Muslim women. That is fully understood. That is why the amendments have been revised. They are important, given the Government's policy of encouraging the religion-based provision of public services—a subject for a separate debate. Certainly there will be legitimate occasions when such public functions are carried out by religious organisations.

The amendments meet the objection correctly made in another place by Baroness Scotland. I hope that the Minister will look kindly on them, because I am concerned that when such bodies act as a public authority they could discriminate. The Minister will be aware that the Human Rights Act duty to secure non-discrimination in the enjoyment of convention rights requires that organisations behaving as a public authority should be careful in that respect.

I hope that the Minister can offer me some comfort, because mine is a genuine attempt to get the wording of an amendment right in response to concerns raised in the other place.

Paul Goggins (Labour, Wythenshawe and Sale East)

I appreciate that the hon. Gentleman's efforts are always a genuine attempt to improve the wording of legislation—from his perspective. This is an important matter. As we increasingly have a mixed economy of public service provision by private sector, voluntary sector and public sector organisations, this becomes an important issue. Current case law, most notably the Leonard Cheshire case, suggests that faith groups and others that are used to deliver public services will not generally fall within the definition of public authorities in the Bill. It is unlikely, therefore, that faith groups that might make use of the exemptions in clauses 56 and 57 would at present be considered to be public authorities for the purposes of clause 51. Therefore, the amendments may seem unnecessary. However, Ministers in the other place and elsewhere have made it clear that we regret the narrow interpretation of public authority given in the Leonard Cheshire case. The Government believe that the term ''public authority'', as used in section 6 of the Human Rights Act, should cover third-party bodies in broader circumstances than those suggested by that case.

A number of processes are at play here. There is the development of case law, which I have just outlined, and the discrimination law review, which will consider this and other matters. I hope that, through that and the Bill, the position will become clearer. We would expect core public authorities that fund services provided by faith groups to ensure that all who have equal need have equal access to one provider or another. In the majority of cases, that will involve faith groups providing services on a non-discriminatory basis to all those who require such a service. That is how most faith groups would in any event wish to run their activities. They do not want to make use of the exemptions in clauses 56 and 57 because they want to provide services to everyone and not restrict them to people of the same faith.

There are, however, cases where a public authority may wish to use a particular faith group to deliver services that will be discriminatory. For example, a local authority that provides a general meals-on-wheels service may wish to use a Jewish or Muslim group to provide a specific service that meets the dietary requirements of Jews and Muslims. The faith group would be discriminating and would be covered by the exemptions of clauses 56 and 57, but the local authority would not be discriminating, because it would be meeting equally the needs of everyone in the community, regardless of their religion or belief, by providing a wider meals on wheels service to ensure that everybody who needed it received it. Therefore, while contractual requirements are a valuable control, it would not be right to limit the exemptions in these clauses entirely to them.

I hope that I have been able to offer some reassurance to the hon. Member for Oxford, West and Abingdon. The situation is to some degree fluid. Case law is developing and there is the discrimination law review. We also have powers in the Bill to vary some of the exceptions as we learn from experience and as further developments take place, but I think that at present the balance is correct.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister for those remarks. He is right that there was the judgment in the Leonard Cheshire case, which was disappointing. I do not think that it was from the Supreme Court, so there is still hope that it will be overtaken by other case law, but otherwise the Government will act. I asked the old Joint Committee on Human Rights what it wanted to do about the problem. In its report it made four suggestions, none of which it was entirely happy with, but there is still agreement that the problem needs to be tackled.

The Leonard Cheshire case showed that the danger existed that there would be discrimination even in what should be perceived as public functions, so the amendments play in an important area. I understood the Minister's specific concern that the contractual provision of the amendment might be too narrow, as it does not take in the wider context of policy from the public authority that is contracting the services, and I shall go away and think about that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 56 ordered to stand part of the Bill.

Clauses 57 and 58 ordered to stand part of the Bill.

Clause 59 - Membership requirement

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I tabled an amendment to omit the clause to remind myself that I wished to have a stand part debate, and it worked, so I am learning. It is taken eight years.

The clause was added in the House of Lords—I read the debates with interest—to allow scouts and guides to continue discriminating against atheists by requiring a promise professing adherence to God or gods. That practice not only excludes the non-religious, such as humanists, but also Jains, most Buddhists and all those belonging to non-theistic religions. It would appear that children with those beliefs are to be welcomed by these organisations if they are willing to pretend that they have a theistic religious faith. We have all done that, to a certain extent, if we consider our past behaviour. I speak for myself. In order not to get beaten up there are a number of things that people do at school. However, children who consciously adopt a non-religious or humanistic life-stance are rejected and turned away. The same rule applies to scout leaders. Atheists are automatically rejected, as are, with somewhat more reason, people such as sex offenders.

It is offensive and unjustified—although there is no right not to be offended—for the organisations in question to reject people who would otherwise do a good job on the basis of their lack of belief in God. They are not religious organisations in the strictest sense; they just have a membership test that requires, for historical reasons, this so-called promise to be made.

The Minister will be aware of the case read out in the House of Lords, which I will not repeat. I have had representations along those lines from someone who was rejected as a scout leader because he refused to lie when encouraged by the leadership to say, ''Just say it and then we'll forget about it and it'll never come up again.'' When he said that he was unwilling to state that he believed in God, he was told that he could not be a scout leader, because it was appropriate that the spiritual dimension of the scouts was looked after by this particular person.

The Bill as it originally stood would have addressed that long-standing injustice, but it has been removed by a Government amendment that was carefully worded to embrace what the British Humanist Association called hypocrisy encouraged by scouts and guides, in that under the clause organisations do not require their members to have religious faith, but only to make a statement asserting or implying membership or acceptance. Hypocrisy is a hard word, but one can see the British Humanist Association's point.

Sitting suspended for a Division in the House.

On resuming—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was just explaining that the British Humanist Association felt that by allowing the promise to continue to be required, the clause encourages people just to say the words when they do not mean them. Hypocrisy is a hard word, but people who are excluded because of the promise, or whose children are excluded, feel strongly. I have some sympathy with them when they point out that if the organisations or the Government want such an approach to continue, it is not an admirable moral education for young people.

The Scout Association and Guide Association profess to be for everyone. I have great admiration for those organisations. I did that sort of thing when I was even younger than I am now, and I thoroughly enjoyed it and know many people who do so and who make a valuable contribution to the community. However, even if they are excellent organisations, it is important to ensure that they are as inclusive as possible. The Scout Association, in its annual report this year

''underlined our commitment to make Scouting available to those of different faiths and beliefs.''

The vision of the Guide Association, which uses the heading ''Guiding is for everyone'', is

''to have sufficient volunteer leaders to enable every girl and young woman to have the opportunity to join Girlguiding UK.''

Should not a law against religious discrimination force those organisations to recant a policy that is greatly at odds with their own professions of universality? Were they to restrict membership to believers, they would, arguably, rule out the 65 per cent. of 12 to 19 year-olds who answered no when asked if they regarded themselves as belonging to any particular religion in a recent survey sponsored by the Department for Education and Skills, titled ''Young People in Britain: The Attitudes and Experiences of 12 to 19 Year Olds''.

In some areas, scouts and guides are the only provider of youth activities apart from churches and other religious organisations. We often debate the need for more youth activities, but permitting scouts and guides to continue to discriminate against the non-religious and those who are not prepared to say something that they do not mean would deprive significant numbers of young people of the benefits of organised youth activities, leaving them with few alternatives to simply hanging out with their friends, which can, we know, lead to antisocial behaviour. The time limitation in subsection (2) is an implicit admission by the Government that the exception is not justified by some great principle. They have simply conceded the amendment to two powerful organisations.

My final point is that the scouts and guides are not simply private membership organisations; they receive public money for their work. When people receive public money, there has to be good justification for their not being inclusive. For example, the Scout Association receives an annual capitation grant from the Ministry of Defence to fund the sea scouts. The guides also received a Government grant in 2004, and local groups receive significant funding from local authorities every year. In 2004–05, scouts and guides groups received local authority funding in Shetland, Hertsmere, Stratford, east Dorset, Hampshire, Bromley, Midlothian, Surrey and north Somerset to name but a few places. That information, says the British Humanist Association, can be found by a simple search on the internet.

The fundamental point is that the Government were right to resist the proposal when it was made in the Lords. It is regrettable that an alternative way was not found to persuade valuable organisations that do good work against having a faith promise limited to monotheism or theism, not just religion generally, or against any such discrimination, given that the organisations say that people do not really have to believe, but just have to say the words to go with the flow.

That sort of thing is inappropriate, and one would have hoped that the Bill would deal with it rather than providing a loophole that spoils the whole thrust behind what it seeks to achieve. The clause is not necessary. The Scouts and Guides would not crumble if they did not have the ability to discriminate on the basis of a religious pledge. I hope that the Minister can find some justification for the clause that is based on principle, not expediency.

Dominic Grieve (Conservative, Beaconsfield)

I disagree completely. Organisations exist because people are happy to conform to their ways. The hon. Gentleman will find that in France the scout movement—I am not sure about the guides—is split in two. One part is religiously based and the other based on secular principles. That is presumably a response to the desires of people in France. If people want to set up a youth organisation on secular principles, it is open to them to do so. It would be quite wrong if a charity that fulfilled all the criteria for a charitable purpose were to be subject to a restriction eliminating a pledge to God as an element of its membership. That would turn it into a nationalised organisation, which it is not.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I know that the hon. Gentleman is not suggesting that this would be legitimate, but I hope that he will accept that his argument echoes those put forward by the golf clubs that told my parents that if the Jews wanted to belong to a golf club, they could go to their own. Indeed, golf clubs were set up to meet that demand. I do not think, and I am sure that the hon. Gentleman does not, that because that possibility will always be available to people in a market for private pursuits, we should accept that it is inevitable.

Dominic Grieve (Conservative, Beaconsfield)

A golf club exists for the purpose of playing golf—at least, it usually does—whereas youth organisations such as the scouts and the guides exist for the purposes of personal development along the lines of the pledge that they ask people to make when they join. If young people, or their parents or organisers, want to set up another organisation along similar lines that does not require such a pledge, it is open to them to do so. I am grateful to the Government for their response on that point.

Paul Goggins (Labour, Wythenshawe and Sale East)

As the hon. Member for Oxford, West and Abingdon has already indicated, clause 59 protects charities that may not have a religious purpose stated within their charitable instrument, but which require members to assert their adherence to or acceptance of a religion or belief. The most obvious example is the one that he used, of the scouts or guides. I shall, I am sure you will be pleased to hear, Mr. Gale, spare the Committee recollections of my time in the scouts.

In relation to the scouts and guides, the question is not about a specific religion, but about a general belief in a supreme being or beings. Both charities require their members to make a promise to do their duty to God. Members are permitted to tailor their promise to their own religion, such as referring to ''Allah'' or ''gods'' rather than to ''God''. In the example given by the hon. Gentleman, a Jewish person would be able to join the scouts because he or she would understand the promise in their own terms.

It is important to give such protection to well established organisations that provide a wonderful support service for young people. It is also important—I hope that this offers the hon. Gentleman some reassurance—that we do not allow it to become a loophole through which new, emerging organisations can get round their obligations under the legislation. We have imposed a restriction on the exception, making it available only for charities that first introduced the requirement of the statement asserting religion or belief before 18 May 2005. That appears in the Bill, and we believe that it will protect reputable and valuable charities, such as the scouts and guides, while preventing misuse of the exception by charities that might wish to discriminate against one or more religious groups by introducing the requirement of a statement and then claiming protection under clause 59.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Minister give way?

Paul Goggins (Labour, Wythenshawe and Sale East)

I had precisely three words to say before the hon. Gentleman intervened.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

This may be the last intervention today. Is the Minister saying that charities are being protected from the need to change their pledges? Their viability is not threatened by the legislation, unless he is assuming that they will be wholly flooded by atheists, humanists and agnostics, even though their purpose is not to do with religion. When he says that the clause is intended to protect those organisations, what are they being protected from? Is it still worth institutionalising the discrimination that I have described, against one group of believers? He talked about Muslims, Allah and Jews and so on but left out those people caught under the legislation who have a belief that just happens to be a non-religious one?

Paul Goggins (Labour, Wythenshawe and Sale East)

I contend that it is not for the state to determine what the promise made by the scouts and guides should be. They are well established organisations, and people understand the promise. Individual people may have their own decision to take—the hon. Gentleman referred to one or two examples—but there is no way that the legislation should be allowed to destroy or distort the valuable work that organisations such as the scouts and guides do.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Destroy?

Paul Goggins (Labour, Wythenshawe and Sale East)

I used the word ''destroy''. The hon. Member for Beaconsfield explained what happened in France and pointed out the repercussions that could happen here were we to be divisive in the way that the hon. Member for Oxford, West and Abingdon is hinting at. I acknowledge that he comes to the issue with good intentions, but I believe that he is wrong. I agree with the hon. Member for Beaconsfield that it is important not to undermine the working of those organisations or others—we have concentrated on scouts and guides, but there may be others, which must have had a promise within their arrangements prior to the date specified, which is 18 May 2005. I hope that the hon. Gentleman will accept that explanation.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The problem with the Minister's reply is the same as the problem with the answer to the hon. Member for Beaconsfield. None of the arguments that he adduced could not also be used in different circumstances when it comes to race relations legislation. Organisations could say that they had always had a race bar, and that that is the way that they work. I am not saying that that is a comparable offence, although it is an offence to those who are discriminated against, but the answer given in those cases was that organisations would not be so badly damaged by having to comply with legislation on discrimination, because the Government believe that not discriminating, particularly against children, is a legitimate thing for us to be interested in. I am sorry that I have not got the support of the Minister and the hon. Member for Beaconsfield, but I think that I speak for the many people who will wonder why this clause, which is practically ad personam in terms of organisation, has been added. However, I do not intend to divide the Committee.

Question put and agreed to.

Clause 59 ordered to stand part of the Bill.

Clauses 60 and 61 ordered to stand part of the Bill.

Clause 62 - National security

Dominic Grieve (Conservative, Beaconsfield)

I should like the Minister to clarify how the national security let-out will work in practice. This ties in with clause 70, which sets out a procedure for national security issues to be raised during court proceedings on the intervention of the Attorney-General. Am I to infer that it will be necessary for the Government to show that a national security angle justifies the discrimination, or will the Secretary of State simply need to provide a certificate saying that national security applies and that is the end of it?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will need to write to the hon. Gentleman to specify the precise circumstances in which a Minister would sign the document and the extent to which it would be a matter for the court, acting on advice from officials representing the institutions of national security. If there is in fact no difference between those two things, I shall want to make that clear in my letter.

Earlier, we touched on the point that national security cannot be compromised. Even where an element of discrimination might be inherent in an activity, national security must take precedence. We have sought to make that clear in clauses 62 and 70, as well as in other clauses debated today.

As we are touching on clause 70, it may be appropriate to say that it provides for rules of court to enable the court hearing proceedings under this part of the Bill to exclude a claimant or his representatives from the court. Of course, there would be proper judicial support for that individual, who would be able to make a statement prior to the proceedings. The clause also provides for the Attorney-General or the Advocate-General for Scotland to appoint a lawyer to represent the claimant's interests in such cases. There is therefore considerable judicial support for that individual, albeit that it is necessary at times to exclude them from the proceedings.

Dominic Grieve (Conservative, Beaconsfield)

One reason why I was wondering about that was that if the Secretary of State's certificate provides a national security defence or opt-out, why do we need clause 70 at all? Presumably, a case with a national security angle will never get into court in the first place. I wanted a bit of clarification on that. I can infer that a national security angle might suddenly emerge in a case and that the court might need to go into camera or to keep the claimant out. Seeing that the Government have given themselves extensive powers to provide for a national security opt-out, however, it would be helpful if the Minister could set out in his letter exactly how he expects the provisions to operate in practice.

Paul Goggins (Labour, Wythenshawe and Sale East)

I will certainly be happy to provide that information. I suspect that the level of detail involved will require a letter, and I shall write to the hon. Gentleman and copy my letter to the Committee.

Question put and agreed to.

Clause 62 ordered to stand part of the Bill.

Clause 63 - Amendment of exceptions

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I referred to the clause when we discussed the Government's order-making power in relation to repealing or creating exceptions. Is there not an inconsistency given that an earlier amendment to clause 63 was not simultaneously made to clause 49(3)? Clause 63 was amended to prevent the Secretary of State from repealing by order an exception under this part, but clause 49(3) still contains the power to

''repeal an exception in subsection (1) or (2)''.

Of course, they might relate to different things. Clause 63(1) says:

''The Secretary of State may by order amend this Part so as to . . . create an exception to a prohibition under section 51(1)'',

and that is clearly different from clause 49. However, clause 63(1)(b) relates to varying

''an exception to a prohibition under this Part.''

The reason why there is no provision in clause 49(3) to vary an exception may be that that is dealt with by the wider coverage of clause 63(1)(b). I raise that in case the Minister can respond now, which would save time dealing with correspondence.

Paul Goggins (Labour, Wythenshawe and Sale East)

I can add nothing to what I said earlier. I was fearful—I am not looking at the officials—when I was about to say that I would write to the hon. Gentleman, but my recollection from earlier is that I have already promised to write to him on this issue, so there will be just one letter rather than two, but I will clarify the matter.

Question put and agreed to.

Clause 63 ordered to stand part of the Bill.

Clauses 64 to 72 ordered to stand part of the Bill.

Clause 73 - Employers' and principals' liability

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 132, in clause 73, page 43, line 9, leave out subsection (2).

The clause provides for employers' and principals' liability where the default and the discrimination are in fact carried out by their employee or agent. However, subsection (4) states:

''In proceedings under this Part against a person in respect of an act alleged to have been done by his employee it shall be a defence for the employer to provide that he took such steps as were reasonably practicable to prevent the employee from . . . doing the act, or . . . from doing acts of that kind in the course of his employment.''

That is in respect of an employee. I was somewhat surprised to see that no such provision or defence is provided for in the case of the acts of an agent. I am drawing the Committee's attention to that by seeking to delete subsection (2), which would altogether remove the responsibility of a principal for the acts of an agent.

To give the Minister an obvious example, let us say that I employ a letting agent to let a property that I own. He is apparently a reputable letting agent operating in the locality. Unknown to me, however, he is in fact a religious bigot who dislikes the idea of people of minority faiths coming into the area, so, in operating the letting policy, he tries his best to ensure that people of minority faiths are deterred from applying by being surly and unpleasant to them. If they do get a letting, he tries—unknown to me, because I am the principal—to respond very slowly to any request that they make and is generally unpleasant to them.

If those matters are completely outside my knowledge—that will often be the case, as the Minister will realise simply by applying his mind to it—is it right that the principal should be saddled with the default of his agent? There is an easy way to cure the problem, which is to provide for a similar protection to that provided for employers in respect of employees, but the Government have not done that. In the absence of such provision, I am very unhappy about clause 73(2).

The rest of the debate is in Hansard.