Equality Bill

Public Bill Committee, 16 June 2009.

Clause 6

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 114, in clause 6, page 5, line 4, leave out ‘and long-term’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 179, in schedule 1, page 144, line 10, at end insert ‘the effect’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is a pleasure to welcome you back to the Chair, Mr. Benton.

I want to speak briefly to the amendments tabled in my name and that of my hon. Friend the Member for Hornsey and Wood Green. The group has three separate components, the lead amendment being amendment 114, which would take out reference to “long-term” when defining an impairment. I shall explain the reasoning.

The other amendments in the group, specifically amendments 179 and 186 to 188, would clarify whether there is an ambiguity in the Bill—a minor point, on which I do not intend to spend long. Amendment 180 is a more detailed attempt to get at the same issue as amendment 114, questioning whether there is a way to define an impairment so that we capture those that, while not being long term in themselves, are likely to recur. I do not claim great faith in the wording of amendment 180 as appropriate to that aim, but that is the intention.

A long-standing concern of the disabled community, and among those of us who support equality, has been the need to ensure that all the people who need to benefit from the protection provided by existing anti-discrimination law and what is proposed can benefit without matters of definition preventing them from doing so. The concern about the use of “long-term” and how it is described in schedule 1 is that that might prevent those people—I am quoting the Equality and Human Rights Commission briefing on the amendment—

“with short-term conditions, particularly mental health conditions such as depression”

from benefiting from the protection.

“Long-term” is defined in schedule 1:

“The effect of an impairment is long-term if... it has lasted for at least 12 months... is likely to last for at least 12 months, or... is likely to last for the rest of the life of the person affected.”

The concern, therefore, is with chronic but fluctuating conditions in which the effect cannot be seen to last continuously for 12 months, but is liable to recur.

The Equality and Human Rights Commission welcomes the removal of the list of normal, day-to-day activities from the definition of disability in the Bill, but it is concerned that the clause repeats the requirement for the effects of the impairment to be long term.

Vera Baird (Labour, Redcar)

I want to ask the hon. Gentleman about something he said a minute ago—that the definition is inadequate for conditions that will not last 12 months but are likely to recur. Of course he knows that paragraph 2(1) of schedule 1 specifically provides that if an impairment stops having a substantial adverse effect on someone’s ability to carry out day-to-day activities, it is to be treated as none the less continuing to have that effect if it is likely to recur. That covers precisely what he was talking about.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the Minister, because that is the meat of the issue. I tabled amendment 114, which would take out “long-term” and consequently render that part of schedule 1 ineffective, but amendment 180 probes the question of “likely to recur”. That is perhaps where we can have most of the substantive debate on the group.

Amendment 180 uses the words

“leave out ‘effect is likely to recur’ and insert ‘impairment is of a nature where it, or its effects, is liable to recur’.”

The problem with “likely to recur” is that one is not certain whether one’s particular condition, which is liable to recur, is likely to recur.

Vera Baird (Labour, Redcar)

I looked at how the hon. Gentleman changed “likely” to “liable” and checked in the dictionary, but they are synonymous. I was surprised, because I thought “liable” was less than “likely”, but they are synonymous, so I do not think he has a point.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Two dictionaries, three definitions. However, I accept the key point behind what the Minister says. If it is her intention to say that “likely” is not a balance of probabilities but a liability to recur—I can go into examples, although I am not keen to get bogged down in them—that would be helpful and enable us to go away and consider whether what she said by means of clarification would be useful not only for the courts, but for people to know their rights. There is a difference, however, and I am seeking to identify a lower threshold than “likely”, which at least implies a balance of probabilities.

Many conditions can and are liable to recur, but they may not recur on the balance of probabilities. The fact that they are liable to recur, but there is uncertainty, is part of the effect that they have on someone. People often have to make life-changing decisions and adjustments to their lifestyle and day-to-day activities because of the fear of something returning.

I look forward to hearing a precise definition of “likely” from the Minister. A common understanding is that “liable” to recur is not as strong as “likely”. However, if her view is that “liable” is as strong as “likely”, we might need to find new wording, such as “has the potential” to recur. For example, depression is a condition that can recur and doctors might not be able to say “likely to recur” when an employer or potential complainant asks the question. Part of the point of treatment, even for conditions that can recur, is the hope that they are treated.

Finally, there is ambiguity about what the “it” refers to in schedule 1(2)(1) because it says:

“The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months”.

We ought to have clarity on whether the “it” is the impairment or the effect. I have argued that it is the effect and my amendment addresses that. I do not claim to have absolutely certainty that it would be useful to clarify that, but it seemed to me that it would.

I do not think there is much more to say except that there is widespread support for doing something about the threshold that is felt to be there by the disability community on the question of “long-term” and the definition provided. It is noteworthy that the EHRC is even supportive of what might be considered the strongest amendment in the group, which would remove “long-term” entirely. It is important that there is clarity and confidence that people can access the protection. All members of the Committee will recognise that disabled people need and deserve that.

Mark Harper (Conservative, Forest of Dean)

I am pleased to welcome you back to the Chair, Mr. Benton. I want to speak to the amendments briefly. The hon. Gentleman raises an important issue about fluctuating conditions. I have tabled an amendment to schedule 1, looking at one issue in particular, where we can have a more useful discussion. We had good evidence in the evidence sessions and Ruth Scott of the Disability Charities Consortium raised the issue about fluctuating conditions, particularly depression, which we will discuss in relation to schedule 1. She also pointed out that removing “long-term” probably was not the way to go because, for example, “long-term” features in the UN convention.

The issue of fluctuating conditions really needs to be addressed. The Minister has already raised that and said that schedule 1 deals with it adequately. We will come to that. Although the hon. Member for Oxford, West and Abingdon has raised an important and valid issue, I do not think his amendments are the way to go about solving the problem. I look forward with great interest to what the Minister has to say.

Tim Boswell (Conservative, Daventry)

Briefly, it is right to flag up the concerns of the hon. Member for Oxford, West and Abingdon, which will exercise many across the Committee.

Two aspects of the matter also occur to me, and are relevant to the provision of services by a public authority generally. One is that while the hon. Gentleman is entirely right to say that long-term and fluctuating conditions are, by themselves, the main remit of the measure, people may have short-term disabilities that may be finite and discrete—they might arise, for example, from an accident at work—but are, nevertheless, real.

I messed my shoulder up some years ago—hardly a matter of interest to the Committee, but one of record. It is quite difficult to be a Member of Parliament and to find that one cannot drive, or do anything else, for a period. It gives one, perhaps providentially, some insight into the problems of people who have a long-term disability that is then forgotten about. We should consider that, because I hope that local authorities and others will.

Secondly, there are issues, for example, about how people are handled in relation to parking, where they need help and where, once again, although their condition may not be long-term, their need is nevertheless real. I hope that as we build up policy on this and some related issues on human rights, which I may wish to deploy before the Committee later, we give this matter sympathetic consideration and try to find a better way to deal with it than has sometimes been the case in the past.

Vera Baird (Labour, Redcar)

Welcome back to the Committee, Mr. Benton. I agree with the hon. Member for Forest of Dean that we have a better amendment than this to deal with the question of “likely to recur” and, in particular, the question of depression, which is the meat of where any perceived difficulty arises. The hon. Member for Oxford, West and Abingdon says that there is long-term concern about this, which would be likely, assuming that he represented the disability sector, but we have talked and consulted extensively with it about this and he is overstating the issue. He has missed it, anyway, with the amendments.

I looked up “likely” and “liable” in the “Shorter Oxford”. I can do no better than that, and if he wants to include redefinitions in the “Evan Harris English Dictionary”, that is absolutely fine. However, we will go with the normal meaning of those words. There has to be a line drawn somewhere and we think that 12 months is not unreasonable. Of course, the hon. Member for Daventry is right: people have to be considerate of those who have hurt themselves—they have their human rights in any event, if I can put it like that, although that is an odd phrase to use about human rights—but he clearly would not have expected reasonable adjustments to be made by his employer because he had a sore shoulder for a short time. That is the scale of what we are trying to balance—interests of that kind.

The 12-month requirement has applied since the introduction of the Disability Discrimination Act 1995 and we do not think that there is any real need to change it. Some of the amendments are consequential on the first, so let me consider amendment 180 as quickly as I may, which is a quest to clarify paragraph 2(1) of schedule 1. To make sense of that paragraph, the question is whether it is the effect or the impairment that has to be “long-term” or “likely to recur”. It is perfectly plain that the paragraph says:

“The effect of an impairment is long-term if”

and goes on to say how it becomes long term. The amendment is therefore not needed because the sense of the schedule is entirely clear.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I note the Minister’s view that the meaning of the schedule is clear. That will no doubt be considered here and in another place. On the question of the views of the disability community, it depends who one speaks to. The Disability Rights Commission was charged with monitoring and reviewing the definition and when it conducted its research for its review of the DDA in 2002, it concluded that the “long-term” requirement, if I can call it that, was

“a persistent problem for people with depression and anxiety disorders.”

I do not claim to speak on behalf of disabled people or the non-governmental organisation community, but I hope that the Minister accepts that there is concern out there. That is why even the organisation that has taken on the work of the Disability Rights Commission, the EHRC, has concerns about the use of “long term” and supports the lead amendment.

I am not convinced that the Minister’s reference to the “Shorter Oxford English Dictionary”, fine tome as it is, is sufficient fully to deal with the issue behind amendment 180. The amendment speaks of the impairment being

“of a nature where it, or its effects, are liable to recur”,

and is not a direct substitution of

“the effect is likely to recur”

with “the effect is liable to recur.”

However, it is clear that the Minister has set her mind against accepting any of the amendments and against recognising that there is even a problem. As the hon. Member for Forest of Dean said, we may go on to probe that issue further in the next group of amendments. With that in mind, I beg to ask leave to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 166, in clause 6, page 5, line 19, at end insert—

‘(4A) Where reference is made in this Act to a person (B) who is perceived to have a disability, the reference is taken to apply to this person whether or not the perceived impairment has a substantial and long-term adverse effect on B’s ability to carry out normal day-to-day activities.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: amendment 168, in clause 13, page 9, line 15, at end insert—

‘(3A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Amendment 169, in clause 18, page 13, line 14, at end insert—

‘(2A) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Amendment 175, in clause 24, page 18, line 3, at end add—

‘(6) If the protected characteristic is disability, this section applies to a person who is perceived to have a disability.’.

Mark Harper (Conservative, Forest of Dean)

The amendments have been discussed with the Disability Charities Consortium and are supported by that organisation and the EHRC. They would provide an explicit definition of persons who are perceived to be disabled so that people experiencing discrimination on the grounds of a perceived disability would enjoy effective protection under the law. I want to probe the Minister on the four clauses that would be amended to find out whether the Government believe that the difference between direct discrimination of those who actually have a disability and those who are perceived to have one are covered by the existing wording of the Bill.

The Bill’s wording is wide enough to cover direct discrimination and harassment based on perception. However, in the view of the DCC and the EHRC, the approach is not sufficient in the case of disability. That is partly linked to the issue that we have just considered in the previous group of amendments. Unlike other protected characteristics, for a person to be considered disabled for the purposes of claiming disability discrimination, they must meet the stringent definition of disability, including its long-term nature. The person who is discriminating against them, based on the perception of whether they are disabled, clearly will not have in their mind a specific legal definition of disability. The reason behind the amendments is to make clear that for cases that involve discrimination based on perception of disability, it is the defendant’s motivation for discrimination that matters, not whether the claimant meets the legal definition of disability. In the United States, the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act.

Given the stigma surrounding a large number of disabilities, especially hidden ones such as mental health problems and HIV, discrimination based on perception may well be widespread. We tabled the amendments to probe whether the Minister feels that the Bill already covers the matter and, if so, so that she can give the Committee an explanation. The view of the DCC and the EHRC is that it does not. The EHRC has specifically said that it does not think, on a normal reading of the clauses to which I have referred, that discrimination against people with a perceived disability is sufficiently covered. Will the Minister set out what she feels the wording in the Bill does, and whether it already covers those issues?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I share the hon. Gentleman’s concern. I have tabled several amendments to clause 13, which we will come on to later, so I will not speak long on this group. I am asking, in respect of all protected characteristics, whether the definition of direct discrimination in the explanatory notes in paragraph 71 on page E9—

“broad enough to cover cases where the less favourable treatment is because...the victim is wrongly thought to have it”—

already covers perception. That is not explicit in clause 13, but it is clearly important that the provision not only covers disability and other strands, but is seen to do so. Simply working on the basis of case law or intention behind legislation without making things clear, when we can, represents a missed opportunity.

I know that the Government are keen to ensure that such legislation is accessible to individuals and organisations. Even if the amendment’s wording is not exactly right, it would serve that purpose well if, as I suspect, the Government’s view is that the statute should cover perceptions of disability and, I hope, other strands.

Vera Baird (Labour, Redcar)

Perhaps I should make it clear that, in our view, “related to”—this is probably what amendment 175, which was tabled by the hon. Member for Forest of Dean, is directed towards—is wide enough to cover association and perception. That is our intention, and it is an important point. I want to make that clear at the outset, even though the hon. Gentleman did not lay great emphasis on that amendment. I understand why he set out that query, as he is probing a particular aspect of the Government’s thinking.

Amendment 166 would provide that a person perceived as having a disability would not have to meet the requirement that their perceived impairment must have

“a substantial and long-term adverse effect”

on their ability to carry out day-to-day activities in order to be protected by the Bill. However, somebody who had a disability would continue to have to prove that. It would be most inequitable for somebody who did not have a disability to have a lighter test to gain protection than somebody who did, and that is the logical fault in the proposal. However, I agree with the hon. Gentleman that the perception aspect of discrimination is targeted on the intention of the person who is “discriminating”—I will put that in inverted commas for the moment. The mischief occurs when a person intends to discriminate against somebody who is in the protected strand, even though they have misperceived that person’s identity, and they are not in fact in that protected strand. This is another way of protecting those who are in that strand, not of protecting those who are outside it.

To pursue the point further, there is nothing to be gained from requiring people to make reasonable adjustments for somebody who is perceived to be disabled but is not disabled and does not need those adjustments, which would follow on from what the hon. Gentleman is saying and one of his later amendments. In one sense, he is right. A person who is not within the strand, even though they are perceived to be in it, is not covered for all purposes as if they were disabled, running through the gamut of protection that we give to disabled people. However, such people are protected against discrimination and, importantly—this is a point that the hon. Gentleman honed in on—the person whose motivation is discrimination is dealt with under the legislation. We think that that is the right way forward, and with respect, having proved the point, I invite him to withdraw the amendment.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the Solicitor-General for that reply. Her point about amendment 166 is sound, and I will withdraw it in a moment.

I would like to take the Solicitor-General back to her first point. Following on from our earlier discussion, I would like verification on clause 24 regarding harassment. She is right to say that someone who does not have a protected characteristic does not need a reasonable adjustment because they are not disabled. However, there could be people who have a disability, or who are perceived to have a disability, and that leads to harassment. That is the mischief, as opposed to them needing a reasonable adjustment—which clearly they do not. Such people might suffer a detriment based on the fact that they have no disability, but are perceived to have one. For example, a person might be ill treated because someone wrongly thinks that they have HIV or a mental health problem. Is she confident that without amendment 175, the harassment provisions in clause 24 would adequately protect a person who does not have a protected characteristic but is suffering harassment none the less?

Vera Baird (Labour, Redcar)

Yes, we are confident of that—I am sorry if I said it too briefly. Let me set out the position more extensively so that it is clear.

Amendment 175 relates to clause 24, which uses the formulation “related to” in the definition of harassment. It means that protection is not limited to a person who has a protected characteristic. It also covers a person who is harassed because of their association with someone who has a protected characteristic or—this is the thrust of the hon. Gentleman’s point—someone who is harassed because they are perceived, whether incorrectly or not, to have a protected characteristic. To set out an explicit provision, as under amendment 175, would cast doubt on the issue that the formulation of being “related to” a protected characteristic would be broad enough to cover harassment based on perception. That would be an unwelcome outcome of such a provision, which I am sure would be unintended. I hope that I have made our intentions absolutely clear. We are satisfied with clause 24, and I hope that the hon. Gentleman will not press that amendment.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the Solicitor-General for her response.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. and learned Lady’s response was helpful in respect of harassment, but what does the hon. Gentleman feel about amendment 168, to which I spoke, which covers direct discrimination under clause 13. Is he satisfied that the same thing that applies to harassment, as opposed to the definitional amendment that leads the group, should apply? Is there more virtue in amendment 168 than in the intention behind amendment 175? Does he intend to refer to that when we discuss clause 13?

Mark Harper (Conservative, Forest of Dean)

I am grateful to the hon. Gentleman for his intervention. When studying the group of amendments, I focused specifically on the issues relating to disability. The Solicitor-General was right when she said that people who do not actually have the disability will clearly not require a reasonable adjustment and that, if someone does not make appropriate provision, they will not suffer a detriment. That is not the case with harassment, and she has adequately satisfied me that that is covered by the Bill.

The hon. Member for Oxford, West and Abingdon made a point about issues other than disability, which we shall indeed cover in due course when we reach clause 13. Given the Solicitor-General’s comprehensive reply, particularly on harassment, I beg to ask leave to withdraw the amendment.

Schedule 1

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 167, in schedule 1, page 144, line 16, at end insert—

‘(2A) Without prejudice to the operation of sub-paragraph (2), the mental impairment consisting of or resulting from depression that has ceased to have a substantial adverse effect on a person’s ability to carry out normal day to day activities shall always be treated as if that effect is likely to recur if the person has had within the last 5 years a previous episode of such impairment which had a substantial adverse effect on the person’s ability to carry out normal day to day activities for a period of 6 months or more.’.

We have already referred to this amendment. It deals specifically with the long-term issue of depression. We tabled the amendment to probe whether the definitions in the Bill would adequately cover all those types of disability that fluctuate, but might recur. The amendment is supported by the Disability Charities Consortium, which says that the Bill covers only recurring or fluctuating conditions if they are based on an underlying long-term impairment—in other words, the impairment is long term while its symptoms or effects fluctuate.

The issue of depression goes to point of what the hon. Member for Oxford, West and Abingdon set out when he cited information from the Disability Right Commission. According to my information, people are rarely diagnosed with the related underlying condition, so separate episodes of depression are effectively the effects of the condition and are not covered under the current definition if they do not last for at least 12 months. There are differences of opinion within the medical profession about when episodes of depression are manifestations of an underlying long-term condition, or whether they are discrete episodes. There are often disagreements in court among expert witnesses about the matter.

Acute episodes of depression can be disabling and there is a 70 per cent. chance of having another episode within five years. Depression can carry considerable stigma, in particular with regard to employment. My amendment would rectify that gap in equality legislation, and protect people who experience short-term, recurrent episodes of depression from discrimination arising from their impairment and the surrounding stigma. It focuses specifically on depression alone for the good reasons outlined by the Minister for holding to a definition of “long-term” in the generality. That specific condition is felt not to be well captured by the existing definition.

Having set that out, I am looking to the Minister to say whether she feels that the existing definition of fluctuating conditions, which she touched on in the previous debate, will adequately cover mental illnesses such as depression, which may not be accurately diagnosed. There is already evidence of cases in which people suffer recurrent episodes but are not adequately protected under the existing law.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That illustrates the problem with the definition of “long-term” in schedule 1 that I probed in amendment 180. I support the idea behind the amendment, although the problem is that it is disease-specific. There are plenty of mental health conditions for which the chance of recurrence might not be as high as the 70 per cent. figure that the hon. Gentleman quoted or about which there is less certainty, less data and less research information on the likelihood of the condition’s recurrence or of the recurrence of the effects. Therefore, the amendment should be seen as illustrative.

All the hon. Gentleman’s points, however, urge the Minister to reconsider her reliance on the wording that the

“effect is likely to recur”,

because in many cases in which protection is needed, physicians will find it difficult to say that they believe that the condition is likely to recur. It is far better to have a definition that does not require independent medical reports to stretch to cover what is required by the law, but to have common sense apply. Therefore, the amendment illustrates again that we need to find alternative wording that does not depend on a likelihood that covers a balance of probabilities, which would be the wrong threshold for many disabling and debilitating diseases that can and do recur but are not necessarily likely to recur. The amendment covers just one example of those.

Vera Baird (Labour, Redcar)

Overall, the broad view is that the issue is one for the medical profession and its diagnosis of depression, rather than for anti-discrimination measures, which already provide for recurring conditions. I remind hon. Members that schedule 1 defines the effects of an impairment being long term, specifically saying in paragraph 2(2):

“If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect”—

even if it does not—

if that effect is likely to recur.”

If a doctor can say that a condition is likely to recur, if evidence from the past on how the individual has reacted suggests that it is likely to recur, or if the evidence suggests that it is likely to recur, the person will rightly be treated as having a fluctuating illness, which is capable of meeting the definition in paragraph 2. However, if we are talking about an awful personal event that puts someone into depression for a period, but they are not depressed in any other sense and do not have an underlying difficulty, and within five years some other awful event occurs—such things can, unfortunately, happen in that sequence—that quite separate element of perfectly sensible depression, as it were, which is a response to an event in a person’s life and would throw anyone into depression, ought not to make them disabled.

Most people in such a situation would not want to be classed as disabled. It would be extremely difficult to know what anyone else could do to help them through the interim period, when they have been perfectly healthy because the impact of such an event has not been playing upon them. It is the reverse of what the hon. Member for Oxford, West and Abingdon said. We should not be looking for a way of defining every instance of depression to ensure that it is within the protection of disability provisions. If something is likely to recur, that person obviously has a long-term illness and must be protected. That is the way around the problem, as common sense, which he prays in aid, and medical evidence require it to be.

Mark Harper (Conservative, Forest of Dean)

I want to probe the Minister on one point about medical evidence. If someone has a condition and there is a fair amount of consensus among medical practitioners regarding diagnosis and the likelihood of recurrence—this returns us to the point made by the hon. Member for Oxford, West and Abingdon—what she says is perfectly fair and straightforward and will capture all the cases at hand. However, the case put forward by the DCC shows that there is a lack of consensus about the diagnosis of depression in the medical community, and there is a debate about whether it is an underlying condition or whether there are separate episodes. That is why the amendment focuses specifically on depression. There is an argument about the likelihood of recurrence, with no particular agreement reached, and it could end up with cases going to court and experts arguing with each other. That might be inevitable, and the court would then have to take a view.

What information does the Minister have, and what research has the Department done, on depression or any other long-term conditions? To what extent are there differences in medical opinion? Is the diagnosis and the likelihood of recurrence in any way controversial, likely to be challenged or at variance? Some people have an underlying condition and suffer recurrent bouts of depression and its disabling effects. It is not in anyone’s interest to force such people into a courtroom or a situation in which they have to weigh up different medical experts against each other. As far as they are concerned, they have a disabling condition that periodically recurs. Will the Minister give more information about the state of medical opinion on that condition?

Vera Baird (Labour, Redcar)

As with all conditions, the question of whether depression is likely to recur must be a question of fact, and medical evidence will help the determination of that. Obviously, it is likely that such matters will be determined as a question of fact long before they get to court, but there is a limit on what one can do in statute to clarify every possible situation that might arise. I think that the provision is clear, and if the diagnosis is not, that is outwith what can be captured within discrimination legislation. We cannot set down a list of criteria that can be used to determine whether depression is likely to recur. That would be outwith our expertise.

All we can do, which seems a very adequate measure and I think that it works, is set out a fair definition based on, “Is it likely to recur?” The hon. Member for Oxford, West and Abingdon equates that with the balance of probabilities and all sorts of things that it is not equated with in any way or case. It is an ordinary question: is it likely to recur?

The hon. Member for Forest of Dean gave an example—I hope that I am not misquoting him—that there is a 70 per cent. chance of depression recurring within five years if it is not a situational depression. Should evidence suggest that someone has depression that is likely to recur, that person will be well protected. When it is not possible to say whether it is likely to recur, we are in a hinterland that can only be determined by evidence of earlier recurrences or by medical opinion. At that point, we are outside the territory of the provision.

The definition of “long-term” is important and we must distinguish it from people who have a short-term problem or who have a disability as correctly termed. Making an exception for the condition covered by the amendment would probably be unfair on people who have conditions that are subject to the same problems of definition. The hon. Gentleman has adequately probed the issue raised by the disability charities, and probing is what they sought. He has done that job and can now withdraw the amendment to let us go forward.

Mark Harper (Conservative, Forest of Dean)

Before I do that, I want to say that given that there is a fair bit of dispute and debate about the issue—she is quite right, there are other conditions—perhaps we can place some guidance on the record. Once the Bill has progressed through the House and the other place, perhaps the EHRC, when it is drawing up its statutory guidance, will consider fluctuating conditions and see whether its guidance is as comprehensive as possible and gives employers and others who will be relying on it a proper understanding of the nature of fluctuating conditions.

Vera Baird (Labour, Redcar)

Indeed, there will be guidance. There is provision in clause 6 for a Minister to issue guidance to help determine whether a person is disabled. If we can probe the uncertainties of this any further, of course we will do so.

Mark Harper (Conservative, Forest of Dean)

I am grateful for that helpful intervention. I beg to ask leave to withdraw the amendment.

Clause 7

Tim Boswell (Conservative, Daventry)

I beg to move amendment 195, in clause 7, page 5, line 25, leave out ‘proposing to undergo’ and insert ‘considering undergoing’.

The Committee will remember that we had a full discussion in Thursday’s debate on the issues affecting persons who are in the process of, or contemplating, transgendering. It is unnecessary and inappropriate to pick up the whole of that discussion, but I said that I had missed out by not moving an amendment on the specific point raised. I have now done that to give the Minister a chance to respond. My hon. Friend for this purpose, the hon. Member for Hornsey and Wood Green, might want to say something on it, too.

The Committee knows—we debated this and it is not an issue between us—that any persons contemplating transgender issues and their future are not in a simple situation. They are a small minority, and that is why they need our support and attention. The decision might be initiated at an early age, or it might take years to make a decision. It might not, in certain cases, go forward to surgery, medical treatment, the formal process of gender reassignment or the acquisition of legal status in the new gender as set out in the Gender Recognition Act 2004. It is a complex and sensitive picture and almost all individuals will be different.

We are grateful to the Solicitor-General for introducing a more sensitive definition. The amendment simply seeks to tidy up something where the definition could be even better. The difficulty with the words chosen by the Government, which appear in clause 7, are that they require the person at the first stage to be “proposing to undergo” a process of reassignment of their sex. I think that is a little too precise for the circumstances of the case. I vaguely recall the Oxford philosopher, J. L. Austin, who created a new class of what he called “performative utterances”—if someone got up and said, “I name this ship the Queen Elizabeth”, it was difficult to deny that they were actually naming the ship the Queen Elizabeth. It could be that if a person said formally and put it in writing, “I am proposing to undergo a process”, that would be a performative utterance. They would have deemed themselves to be doing so, and they would automatically receive the benefit of protection of the protected characteristics.

In the real world, it is not like that at all. People are ambiguous—they make tentative inquiries, go and see a doctor, talk to a counsellor and start thinking about it. It would be better and more sensible in those cases if the protection, which is rightly intended by the Committee, was extended to those persons whose status is not wholly determined, but are thinking about it. That is why I came up with the phrase “considering undergoing”.

I stress to the Committee that that would not be a test with no evidence. If there was an act of discrimination, the person involved would have to show some evidence that they had been “considering”. They could not make it up afterwards—or rather, they would have to convince a court that they had such evidence. But it would be more informal than saying, “I am proposing to undergo a process.” It would be saying, “I am not quite sure where I am, but I need to think about it. It might transpire in the process of gender reassignment.” It would be a softer but not non-existent test. It is entirely consistent with the advances that we have already made—we are just taking it a stage further.

I say to the Solicitor-General that I have proposed those words because they were the first ones that came into my head—I have no proprietary interest in them. If she can come up with a better way to catch the more nuanced definition of people starting on the process and extending the protection to them—indeed, some of them will really need it—the Committee will be grateful. As I said, I will not stand on the words, but I think the issue is worth considering.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I will not hold up the Committee for long as we discussed the issue the other day. I am grateful to the hon. Member for Daventry for tabling the amendment, which goes part way to where I was trying to reach, but not the whole way. It is important to introduce the idea of uncertainty and confusion, which populates the transgender world to a far greater extent than the world in which people are settled in their decision to live in one gender or the other. I felt that we had not touched on that complexity or allowed for that confusion, although the amendment goes some way towards that. Paragraph 56 of the explanatory notes states:

“The clause also explains that a reference to people who have or share the common characteristic of gender reassignment is a reference to all transsexual people. A woman transitioning to being a man and a man transitioning to being a woman both share the characteristic of gender reassignment, as does a person who has only just started out on the process of changing his or her sex and a person who has completed the process.”

The amendment still does not capture those who are not considering a change—those who are confused, but not considering living in or transitioning to another gender—but who may still experience discrimination because they are not physically identifiable as either a man or a woman, whatever their latent state. I think that the amendment still leaves that area somewhat unexplored, but it is certainly better than where we were. I will also be happy if the Minister considers bringing that into the Bill in some form that gives a voice to those who are not covered by reassignment.

Vera Baird (Labour, Redcar)

I can see the point made by the hon. Member for Daventry; it does arise—he already made that point in our debate last week. I am incredibly impressed. Having read Professor Austin myself—he was a positive jurisprudentialist—I can tell the hon. Gentleman that his one reference to Professor Austin makes it clear that he got a lot more out of studying the professor than I ever did, despite many years of application. However, I am not sure that the amendment would help. If it would, we would of course consider it.

After working as hard as we could on the right definitions for clause 7, we concluded that the phrase “proposing to undergo” provides the best practical coverage. It gives a degree of certainty and more sureness, which the term “considering undergoing” does not. A person can have lots of ways of thinking about their gender. At what point that amounts to “considering undergoing” a gender reassignment is pretty unclear. However, “proposing” suggests a more definite decision point, at which the person’s protected characteristic would immediately come into being. There are a lot of ways in which that can be manifested—for instance, by making their intention known. Even if they do not take a single further step, they will be protected straight away.

Alternatively, a person might start to dress, or behave, like someone who is changing their gender or is living in an identity of the opposite sex. That, too, would mean that they were protected. If an employer is notified of that proposal, they will have a clear obligation not to discriminate against them. If anything, a good employer would help them. However, without a clear decision even to propose to do that, it is difficult to see how, practically, an employer will know that the assistance is necessary.

If what is going on is an internal cogitation, with no external manifestation, it is difficult to see how this can work practically. We want to ensure that people start their personal journey—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The problem is the other way around. Often, one can have an external manifestation without an internal decision being made. The fundamental point that we have made in both these debates is that we need to find a way to cover people who, for example, may cross-dress. It is therefore obvious that they may be a target for discrimination, and indeed harassment in certain circumstances. They may not necessarily have made a decision or, in respect of harassment and discrimination outside employment, they may be too young—below the age of Gillick competence or Fraser competence—to be legally able to start or to propose externally that they should undergo gender reassignment. There is still a fundamental difference between our positions.

Vera Baird (Labour, Redcar)

No. The hon. Gentleman has that completely on its head, to be frank. No one is too young to cogitate about their gender identity. The consequences of doing so may be very different. We are not, as he seems perpetually to be stuck on, talking about the medical model of gender reassignment, on which some people may well be too young to be responsible enough to decide. This is not gender reassignment on a medical model. He really needs to come off that tramline and look at this for what it is. It concerns a personal journey and moving a gender identity away from birth sex. I am sure that that is as capable of being done by a young person as by an older person, and it is indeed likely to have manifestations. Those manifestations are the things that will indicate that some sort of process is in place.

If a person makes the proposal—it is a proposal, not a decision where someone says, “I will do it and never turn back”—that they may move along that pathway, at that point, and at that point only, does it become practical to protect someone. Someone who is having internal concerns about themselves is not manifesting it in any way that can be acknowledged and protected by any external person. As soon as there is a manifestation—as I have said already, and we discussed this last week too—the duty not to discriminate comes in.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would like the Minister to elucidate on the situation in which someone is not considering living in another gender, but the external manifestation leaves them looking indeterminate. How would they get protection if they were to be discriminated against for being unable to be identified as male or female?

Vera Baird (Labour, Redcar)

It would depend upon the definition in clause 7. If she feels that such people are neglected, I should point out that nothing in the amendment would help them. We are talking about an amendment changing the definition of when someone triggers this particular protection, not extending the definition within clause 7, so we can focus on the remarks made by the hon. Member for Daventry.

As I have said already, if we thought the hon. Gentleman’s proposals would help, we would consider them further. However, we do not, for the reason I have outlined, which is that there has to be a practical way to trigger protection against discrimination. Let us remember the perception element. If people manifest what is thought to be a tendency to move towards the opposite sex—away from their sex identity—they might be perceived to be within the definition under the provision. They will therefore have protection when they make those manifestations on the basis of perception. Any behaviour that may be a precursor to an individual proposing to undergo gender reassignment may be covered by perception, so anyone who has gender diaspora and experiments with transvestitism before starting the process of living full-time or even from time to time in what they see as becoming their acquired gender will be protected.

There does not seem to be a problem about people who are considering reassigning their gender. We have covered the territory directly under the definition and through perception to cover those who are making manifestations or who may be misperceived to be in the process of gender reassignment. We have to cope with the fact that the public are probably not massively well informed and will make relatively simple judgments about people. The individual who is misperceived to be on a journey, when, in fact, they are manifesting something that is not part of a journey, will be protected. We have deliberately cast the definition widely to cover all those who need protection against discrimination. We have no evidence that there is a need for anything wider.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

As for whether the perception works in a way that the Minister identifies, Equality Network noted in the Government’s equality impact assessment at paragraph 2.20 her view that protection on the basis of perceived gender reassignment will provide new protection for people who are “considered as being transvestite”. I, like Equality Network, welcome that assertion. However, the concern is that such people might not be adequately protected on the basis of perceived gender reassignment, because relying on that provision would perhaps require proof that the discriminator wrongly perceived the person to be transsexual—proposing reassignment, as the Minister put it—as opposed to knowing or perceiving that they were transvestite, inter-sex or androgyne. If the perception has nothing to do, in the mind of the discriminator, with gender reassignment but relates to whether someone is a transvestite, would that be covered by the perception provision?

Vera Baird (Labour, Redcar)

I am not sure of the nature of the hon. Gentleman’s argument, because I was sitting down when he began to speak. However, I am happy to help him as best I can, although it is a fairly endless job. The matter of perception rests on whether someone is perceived to come within clause 7. It is as simple as that.

Tim Boswell (Conservative, Daventry)

I suppose that it is an indulgence that we end up second-guessing the Minister’s response before we have finished with the amendment. In this case, I did almost precisely that. The Minister understands why we tabled the amendment, and she has been generous about it. In effect, she has put the counter case in that such things are difficult to tie down without a fairly clear evidential test. I accept that, but I hope that I had at least entertained the possibility that any relevant evidence could be considered as part of the process of “considering undergoing”. We are really talking about what would be a test, and as the hon. Member for Oxford, West and Abingdon has reminded the Committee, that is considered not only by the individual, but by the potential discriminator.

I probably have to give ground to the Solicitor-General. The only point that I would stick on with my amendment is that, in a sense, No. 1 for a gender discrimination counsellor or medic consulted by someone who is contemplating the process should be to say, “Sign a chit here, saying you are proposing a process of reassignment and that will protect you, otherwise you might get hit—discriminated against, or whatever.” That could trigger a decision or perceived decision that might not be helpful to the person’s interest.

We are going to have to leave the argument on that side of it, legally, except that the Solicitor-General has introduced some rather interesting additional tests, which go some way towards meeting the concerns of Liberal Democrat Members—clearly not far enough for them, but far enough for me.

My amendment is pinned on a specific issue: is the performative action saying, “I propose to undergo this”? The Solicitor-General has said that that could be one example. If I wrote that I was consulting a specialist about the situation, that would be incontestable. She also said that a number of actions, including cross-gender dressing, behaving in a way that is not consistent with the natal gender or whatever, might be regarded as similar performances and would activate the protections under clause 7. If so—that is obviously her view—we should record that that is the case. That is a welcome advance, because it gives additional protections.

We need to come back to the real-world situation. People with considerable vulnerability may be treated badly in different ways, whether through formal discrimination or not. Often those people who are mistreating them are unfamiliar with such conditions and will not have the appropriate sensitivity. It may well be that the Solicitor-General is right and that we cannot capture all that in the anti-discrimination legislation without stretching the test of what is proposed beyond its normal limits or the possible evidence. However, it is important always to bear in mind that there are people who have such problems and need to be treated properly. Perhaps it cannot be done under anti-discrimination law; certain cases could be a matter of criminal law, if people are hit, threatened or abused, which is not acceptable.

Given the Minister’s assurances and the extension of what might be termed the literal-minded approach to take other factors into account, I am minded to withdraw my amendment on the understanding that the Solicitor-General will continue to review the matter. If she can come up with any better ideas that are a little more pointed but meet such cases, we would be grateful. I beg to ask leave to withdraw the amendment.

Clause 8

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 127, in clause 8, page 6, line 7, leave out ‘or a civil partner’ and insert

‘, a civil partner, co-habiting or single’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following: Amendment 128, in clause 8, page 6, line 10, leave out

‘or is a civil partner’

and insert

‘, a civil partner, co-habiting or single’.

Amendment 129, in clause 8, page 6, line 12, leave out ‘or are civil partners’ and insert

‘, civil partners, co-habiting or single’.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The amendment has been tabled to probe the Government’s thinking on why single and cohabiting people have been left out. Why are marriage and civil partnership protected? Why are they protected and a cohabiting couple or a single person not? It is about relationship status and, in an anti-discrimination Bill, we would not expect any relationship status not to be as important as another. If the provision is not amended, surely single people and cohabiting couples will face the possibility of real discrimination. I would welcome the Government elucidating whether there is something particular that they had in mind that applies to married couples and civil partnerships and from which they, but not cohabiting couples and single people, need protection that.

Vera Baird (Labour, Redcar)

The hon. Lady would help me enormously if she defined a cohabiting couple.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would define a cohabiting couple as two people living together—perhaps as simple as that.

Vera Baird (Labour, Redcar)

Brothers and sisters? Mothers and fathers?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

Not a familial relationship. The point is to probe the equivalent of a married couple or a civil partnership, which involves love and a sexual relationship.

The point is that the cohabiting couple and a single person are likely to face the same kinds of discrimination. If they are excluded from the protection, it will create a whole new disparity: treating people differently according to their relationship status. To give a couple of examples, would it not be wrong for a landlord not to want to rent to a single person because he believes that a single person is less likely to be responsible or settled, or more likely to have late-night parties? What about an employer who refuses to give work to a single person applying to look after children because they believe that only a married person is appropriate for such a job? What about a hotel that refuses to give a cohabiting couple a room because they are not married, even though they may have been cohabiting and in partnership for years? I would be grateful if the Minister would elucidate why those in the particular relationships of marriage and civil partnership are included in protection and not cohabiting couples or single people.

Vera Baird (Labour, Redcar)

I am grateful for the definition, which saved me from raising questions of uncertainty about brothers and sisters and so on. The hon. Lady makes an interesting point about hotel discrimination. There is a nice story, which now goes way back, about the then Archbishop of Canterbury going with his wife to a hotel, signing the register “Geoffrey Cantuar and Mrs. Fisher” and being asked to leave because they were not married, although of course they were. For the sake of those who are not Latin scholars, unlike the hon. Member for Daventry and me, “Cantuar” is how the archbishopric of Canterbury is described in Latin.

The hon. Lady is right that life is fraught for all sorts of people, but the point of the Bill is to provide protection against discrimination where it exists and where protection is necessary. We would add further characteristics to the scope of protection under the Bill if that were an appropriate and proportionate response to a real problem, but we have not had any evidence that such problems are faced by those who cohabit or are single. In fact, as part of the discrimination law review, the Government consulted on whether to remove the existing marriage and civil partnership protection, because there is not a lot of evidence of discrimination on that basis either. We listened to the responses on whether to remove it. They were pretty much 50:50. Some responses suggested that incidents of discrimination on that basis might still be taking place, but there was no indication of discrimination against those who cohabit.

It is a difficult definition. At which point does someone stop being a single person and become a cohabitee, after how long would someone qualify for that separate category and might they be in danger of losing their protection under the other category too quickly? It is an issue of certainty of definition as well. I hope that I have reassured the hon. Lady that it is a sensible course—just about—to protect married and civil partners, even though there is only the slightest evidence that they face discrimination, and that it would be both impractical and unnecessary to extend the measures following her amendment. I invite her, having probed the issue, to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I have listened carefully to the Minister. With little evidence for marriage and civil partnerships and no evidence for cohabiting couples and singletons, I can understand the difficulty. It goes against the grain to leave a measure that bestows a differential between people in different relationships in an anti-discriminatory Bill, but as I do not have the evidence to bring before her, I will have to leave that disparity in place. However, I would like to put it on the record that I think it creates a differential.

Mark Harper (Conservative, Forest of Dean)

The hon. Lady is making a point about creating a differential. The provision is carried forward from the existing law. I was interested in the proposed amendments, so I went back to the look at the Sex Discrimination Act 1975. Some of the language in that Act seems rather strange now. The Solicitor-General will correct me if I am wrong, but the clear intention of that measure was to protect married women who may be discriminated against, specifically in an employment field because employers felt that they were not sufficiently committed. Employers might, for example, discriminate because they thought that women were going to have children. That was why the measure was introduced. The Solicitor-General was saying that the evidence today is that such discrimination does not exist widely if it exists at all. However, the decision on introducing the provision was finely balanced. The hon. Member for Hornsey and Wood Green raised an important issue, but it shows how the world has changed since some of the provisions were introduced. It is not a new provision, but simply one that exists in law and is being carried forward.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman for his intervention. It is therefore interesting to ask this question: if the intention of the original Act was to prevent discrimination against women because they were married, why is there not more evidence of such discrimination? I am surprised that there is not more evidence. For example, Nicola Brewer, the outgoing chief executive of the Equality and Human Rights Commission, has said that married women were being discriminated against before they were even employed, because maternity packages were reckoned to be so good.

Vera Baird (Labour, Redcar)

A person can get pregnant without being married, so is that not discrimination on the basis of sex? That is very adequate coverage. May I tell the hon. Lady that the only bit of evidence that we could find of prejudice or discrimination at all was one case that showed that there were instances of discrimination when an employer did not allow married people to work together, because that might interfere with their commitment to the business? That is the only example we could find.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

It is a bit like not being able to go out with or date people in the same office, which often happens.

John Mason (Scottish National Party, Glasgow East)

The hon. Lady was looking for examples. Some years ago, I wanted to visit a Scottish island, but there was no bed and breakfast accommodation for single people whatever—I suppose because the establishments only had twin or double rooms. I accepted that because it was a commercial decision. They are quite small establishments and they cannot cater for everybody, so I did not feel discriminated against, but is that an example of such discrimination?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

When I was preparing for the debate on this amendment, I wondered whether those sorts of issues would be dealt with in this part of the Bill, but I was unsure whether marketing and sales was a legitimate or justifiable way to go. There is an unfairness in people having to pay a single supplement when they take a single room in a hotel and a whole raft of similar things. What is the Solicitor-General’s view?

Vera Baird (Labour, Redcar)

That is not about marital status, but about going on holiday alone, which is a difficult strand of discrimination to protect someone against. We are having a whip-round now to buy the hon. Member for Glasgow, East a tent.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I came to the same conclusion, which is why I did not use such an example as an argument. It makes me slightly uneasy to leave a differential in relationship status in a Bill that is meant to bring things together, but I beg to ask leave to withdraw the amendment.

Clause 9

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I wish to raise two issues. First, the fact that the Bill clearly extends the provisions to colour or nationality is to be noted and welcomed. Secondly, however, why have the Government chosen not to go down the path of including the question of dissent? As I understand it, the provisions in the original directive enable the Government, if they so choose, to talk about discrimination on the grounds of dissent as part of racial discrimination. It is not clear whether the Government have not taken that course for a specific reason or whether they think that it is already covered.

There are questions about whether we have sufficient coverage of discrimination if the specifics of racial discrimination, including that on the basis of someone’s descent, are not covered. There is clearly an overlap into issues of genetics and so on, and questions about caste discrimination would come under that. It would be helpful if the Minister clarified the Government’s position. This is a significant clause on race discrimination.

Vera Baird (Labour, Redcar)

The hon. Gentleman suggested that this is an extension, but I am not sure why he thinks that that is the case. It troubles me, and I would be grateful if he would set his case out further. This is not an extension of the definition; we have covered discrimination on the basis of colour for a long time. All four of the limbs—colour, nationality, ethnic and national origin—are there, and always have been. I need to understand what he thinks has been extended, so that I can answer him appropriately.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am looking at my briefing again. As I understand it, because the regulations with respect to the EU race discrimination directive were introduced under section 2 of the European Communities Act 1972, they could not go further than the provisions of the directive. Therefore, when they were originally introduced, the new regulations could not cover race discrimination complaints brought on the grounds of colour and nationality. That means that for the new definitions of indirect discrimination and harassment, the shift in the burden of proof relating to the genuine occupational requirement exception will apply only to discrimination on grounds of race, ethnic or national origin, and not to colour or nationality.

That was the previous position as I understood it, but I thought that it had been dealt with effectively in primary legislation. There was primary legislation, and the Government were not restricted—as they had been—to implementing that directive through secondary legislation. I hope that my understanding is correct—if it is not, I will apologise.

Vera Baird (Labour, Redcar)

The hon. Gentleman suggests that we have not outlawed discrimination on the basis of colour before today, which is an outrageous and bonkers suggestion. The briefing—which I think the hon. Gentleman needs to read again—states that we have changed where the burden of proof lies. The directive separated colour and nationality from ethnic or national origin, and put the burden of proof in tribunal proceedings on one side for one group, and on the other side for another group. Discrimination on the basis of colour and nationality, as the hon. Gentleman knows, has been outlawed in this country for a generation. There is no extension in the definition, which is what we are talking about. When we come to talk about the burden of proof, I will explain to the hon. Gentleman how it has been extended. The definition has not changed.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was not proposing a probing amendment or talking about the definition. I do not see why the Minister should consider it bonkers and misunderstand my point, which is that the Bill fully extends that protection in other areas, which previously we were not able to do. I return to my main point about whether the Government have a view on the question of descent being part of the definition of race.

Vera Baird (Labour, Redcar)

It is extraordinary that somebody who appears to focus so closely on some arcane points of discrimination law can suggest that this is an extension of cover in clause 9. It is not. It is carried forward from the old legislation. I am very surprised. However, to look at another issue, in our view descent is likely to be part of ethnic or national origin. In due course, we will get to the meat of the hon. Gentleman’s briefing note, and he will need to find it again later in the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am disappointed that the Minister refuses to answer the question and resorts to a delaying tactic of criticism and abuse. That is not necessary in a Committee where, so far, we have had effective scrutiny and a good dialogue. She may see it as an opportunity to show-boat and grandstand her great expertise, and we recognise her experience as a lawyer. The question that I urge the Minister to address is for what reason have the Government chosen not to include descent in the definition of race under the clause? Does she think that it is adequately protected otherwise? Is not extending the clause in that way a policy decision made by the Minister, whose responsibility is to steer the Bill through the Committee?

Vera Baird (Labour, Redcar)

I have already answered that question.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

On a point of order, Mr. Benton. the Minister says from a sedentary position that she has answered it.

Joe Benton (Labour, Bootle)

The Minister contends that she has answered the question. Does the hon. Gentleman have a further question?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We will have to look at the record to see whether the point that I raised twice has been answered. That means that we may have to come back to it at a later point. Clearly, however, there is nothing more that I can do to elicit an answer on that point.

Clause 10

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 215, in clause 10, page 7, line 23, at end insert—

‘(4) The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment 216, in clause 10, page 7, line 23, at end insert—

‘(4) The meaning of religion or belief does not include the degree of support for matters of public policy or for the policies of a political party.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The amendments cover different issues. They seek to probe the extent to which the Government agree with the case law that has emerged. Amendment 215 would clarify that

“The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.”

There are two other amendments on the amendment paper, which were not tabled in time to be selected. They put it in better terms, and are in relation to the protected characteristic of religion or belief, so that a reference to a person’s religion or belief would not include reference to that person’s other protected characteristics.

The point about the amendment is to question whether the Government agree that it is not acceptable for people to seek to use the opportunity, which exists rightly, to discriminate on the grounds of religion in certain matters such as employment where certain conditions are met, on the basis that a criterion is set for religion, which is not met in the definition of religion, because someone is gay, or, less directly—although I think it goes to the heart of what one’s sexual orientation is—because someone is having sexual relations outside marriage. For example, someone may be having sex with someone of the same gender and, by definition, that will always be sex outside marriage.

We have had assertions from people representing religious organisations that they should be entitled to discriminate on the basis of sexual orientation, although they point out that it is not on the basis of the fact that a person is attracted to someone of the same gender, but on the basis that they act on that attraction and are engaged in otherwise lawful sexual relationships with someone of the same gender.

In case law, we have had a number of judges who were very clear.

Mark Harper (Conservative, Forest of Dean)

I am not trying to pick on the hon. Gentleman, but he said that amendment 215 was not as brilliantly drafted as it might have been. I sat here, wishing to stop him before he got on to the specifics. Amendment 215 says:

“The meaning of religion or belief does not include whether, or the degree to which, a person has one or more of another protected characteristic.”

It may be that I am particularly dense, but I do not have the faintest idea what it means. Perhaps other members of the Committee do not either. Will the hon. Gentleman explain what he is getting at?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I was going to through the example that I gave. It may be argued by some people that someone cannot be of the religion, criteria having been set on that, if they are gay. That is basically what I am saying. For example, there is a provision in the Bill, which I think we all support, whereby a religious test could be required for some employment. The definition of religion is given in the Bill. Prospective and actual employers might be under the impression that they can say, “This person does not practise the right sort of religion.” I do not want to name any particular religions, because it gets invidious, but I fear that I may have to.

Let us take Catholicism as an example—I do not say that this occurs, but one can see how it might. Such an employer would say that someone has to be a Catholic in order to work for them. That person might indeed be a Catholic but, if they are gay, it could be the view of the employer that they do not fulfil a religious criterion because orthodoxy in that religion—Catholicism might not be a good example—cannot include someone who is gay or, more frequently, expresses a sexual orientation that by definition leads them to be outside the religion. An amendment that we will come to later deals with that. So a potential employer will say, as they have in briefings to this Committee, that they do not seek to discriminate against people who are gay, but that they want to be able to discriminate against people who have gay sex.

John Masonrose—

Mark Harper (Conservative, Forest of Dean)

rose—

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will give way in a moment, if I may, to the hon. Gentleman who asked the original question. I want to ask him whether he understands the point that I am making.

Employers want to be able to discriminate on the basis of religion, not on the basis of sexual orientation, where they have less scope, for reasons that we will come on to discuss. The person may not fulfil the religious criteria that they are laying down, because their lifestyle may be incompatible with religious orthodoxy. May I ask the hon. Gentleman if he understands the point that I am making?

Mark Harper (Conservative, Forest of Dean)

I thank the hon. Gentleman for that explanation. I am clear about the point that he made and, now that he has made it more clearly, I can see that I do not agree with it. The example that he chose was a particularly poor one. As a Roman Catholic, I should declare an interest, but I do not think his point was well made. I do not know of any mainstream religion that actually discriminates, or says that someone cannot be a believer in that religion because of one of the protected characteristics. There is nothing in Catholic teaching that says someone cannot be a Roman Catholic if they are gay.

On the hon. Gentleman’s particular point about employment, which we will come on to later, the teaching does say that if, for example, someone wants to be employed in a particular role within that Church, their behaviour—what they do, not what they are—has to meet certain standards. Those are two very different things. That is why I was having trouble following the meaning of his amendment 215, which talks about someone having protected characteristics and not being able to be part of a religion, rather than carrying out certain behaviours, which do not necessarily follow from that protected characteristic.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

First, I am pleased that the hon. Gentleman understands my point. I accept that one can make the differentiation. I just seek to make it clear that a test on conduct has to be argued on that basis and not on the basis of religious criteria. The point I am making is that we will see exceptions, based on sexual orientation or conduct issues, that are entirely separate and, in respect of discrimination allowed in employment by religious organisations on the basis of sexual orientation, far narrower than those allowed on the basis of religion or belief.

I could go into where that is in the schedules but the hon. Gentleman should take it from me that there is more scope—there are fewer qualifying conditions to be met—in order for an employment exemption to be made on the basis of religion than sexual orientation. I think one can understand why, and I am not opposing those per se. It is important that the religious criteria, which can be used in more cases, are not used as a proxy for discrimination on the basis of sexual orientation, or sexual practice, which is closely linked to sexual orientation.

John Mason (Scottish National Party, Glasgow East)

I rise to follow on from the point made by the hon. Member for Forest of Dean. I wonder whether the hon. Member for Oxford, West and Abingdon would accept that, for most religions, including Christianity, Islam and Judaism, sexual behaviour is dealt with within the religion. There are certain standards that are expected. The religion also goes into people’s attitudes, but the main point is that sexual behaviour is dealt with and is a concern to the major religions.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Indeed. I do not think that we can change the fact that it is a concern. However, we are talking about the law of the land, and I am clear that what I want to be confirmed is that, if people want to discriminate against others in a post or in a religion, on the grounds of sexual orientation, they need to do so on the basis of the framework set out in the schedules for sexual orientation and not seek to do it on the basis of religion—I will go into why that is in a moment.

The issue that the hon. Gentleman has just raised underlines the point that many religious people hold the view that one cannot, in some orthodoxies, for example, be a Muslim if one is gay or is having gay sex. I am not seeking to castigate them for doing that—they are entitled to their view—but we have to make sure that people do not suffer in employment and other areas from the pursuance of that view. That should not be provided for.

Tim Boswell (Conservative, Daventry)

Can the hon. Gentleman clarify, to me at least, whether he is prepared to consider that sexual behaviour, as opposed to sexual orientation, could, in certain circumstances, be a legitimate interest for religion? If he is saying that the religious hierarchies are unable to make judgments, on the basis of their moral view, about what is, or is not permitted by way of behaviour, as opposed to orientation, we should know that that is his position, which I do not share.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I refer the hon. Gentleman to schedule 9, if I may, because it is important to understand what exemptions exist. I am not arguing against them. I am arguing that the exemptions should be used in the right way, dealing with the right thing. Paragraph 2 of schedule 9, on page 181 of volume II of the Bill, is headed, “Religious requirements relating to sex, marriage etc., sexual orientation.” In sub-paragraphs (1) to (8)— sub-paragraph (8) has been mentioned previously— paragraph 2 sets out the basis upon which sexual orientation can be used as a basis for discriminating in employment and it is a good example. One can see that that is limited—an issue that we dealt with in Committee—by sub-paragraph (8), which states that employment, where allowed,

“is for the purposes of an organised religion only if the employment wholly or mainly involves—

(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or

(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).”

My view is that the Government are right to put in statute the narrow definition of that exemption that is allowed for in the original directive and stems from the Amicus judgment. The Government won that in a positive way for the people making the claim because the view was that the provision in the original employment discrimination regulations in 2003 had to be interpreted narrowly.

I draw the attention of the hon. Member for Daventry to paragraph 3 over the page, where there is a separate exemption headed, “Other requirements relating to religion or belief.” It is a short paragraph, where there is not that restriction on what can be done. Therefore, an organisation with an ethos can put down “ an occupational requirement” which is

“a proportionate means of achieving a legitimate aim”

or similar wording, as that itself is subject to amendment. Paragraph 3, sub-paragraph (c) states that

“the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).”

That is broader. My point is that, if someone wants to discriminate against a person on the grounds of sexual orientation, they need to fit within paragraph 2, rather than paragraph 3.

The reason that I raise that concern is that in evidence to us—both oral and written—the Catholic Bishops Conference states, for example, in written evidence E14 that it wants to be able

“to exclude from a Parish position dealing with young people a candidate who had”—

and it goes on to describe something to do with behaviour. A parish position goes wider than someone dealing just with liturgy, as set out in sub-paragraph (8). The Catholic Bishops Conference is saying that it wants more room for manoeuvre. It gave the example of someone

“who had divorced their spouse, civilly re-married and created two broken families within the same Parish community.”

We do not necessarily need to go into that example, although that is a rather subjective way of looking at someone’s circumstances. However, in its oral evidence, the Catholic Bishops’ Conference says that it might wish to exclude from employment someone who is having sex outside marriage. My point is that it should not be able to do that on the grounds of the religious exemption.

John Mason (Scottish National Party, Glasgow East)

Does the hon. Gentleman accept that it would be strange if, for example, a youth worker for a religious organisation such as a Church were teaching that organisation’s teachings to young people, but living a life that was the opposite of what they were teaching? Surely, the way in which they were teaching would lose credibility.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

For obvious reasons, I do not want to go too far into the wording of the schedule, but that is dealt with in sub-paragraph (8), which says that if the employment

“wholly or mainly involves...promoting or explaining the doctrine of the religion (whether to followers of the religion or to others”

the person is entitled not simply to apply an indirect condition saying, “Don’t have gay sex,” but to discriminate on the basis of sexual orientation, where it is otherwise justified. Sub-paragraph (8) is what should be relied on. The hon. Gentleman’s example could fit that, and that is what the organisation should use. However, one could not apply that to any youth worker doing anything, because that would not necessarily “wholly or mainly” involve

“promoting or explaining the doctrine of the religion”.

Youth workers employed, for example, by the Catholics do a great a job. It will come as no surprise when I say that that is not simply because they promote or explain the doctrine of their religion, but because of the important wider work that they do, which is pastoral and not necessarily religious—indeed, many of their clientele will not be religious at all, but will appreciate their intervention.

Tim Boswell (Conservative, Daventry)

I am prepared to concede that there might be cases in which I have some sympathy for what the hon. Gentleman is arguing. Nevertheless, will he at least consider the possibility that if conduct that is scandalous or an affront to the teachings of the religion becomes public knowledge, that is likely to make it difficult for a youth worker or somebody else in a pastoral position to discharge their responsibilities, even if those are not within the rubric of wholly, mainly or primarily

“promoting or explaining the doctrine of the religion”?

Something that is clearly contrary to what is taught is, by itself, offensive and may be subversive of the organisation’s teaching.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Gentleman puts his finger on the nub of the whole question of sexual orientation discrimination in the Bill as regards religious organisations.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman says that this is the nub, but he also used the words “sexual orientation”. Much of the concern of the organised Churches and others relates to sexual practice, rather than orientation. I just wanted correct him.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is important that I deal briefly with this question now because it comes up in the definition of sexual orientation in another group of amendments, and I do not want to queer the pitch, if hon. Members will excuse the expression.

At paragraph 29 of the Amicus judgment, the judge, the honourable Mr. Justice Richards, said:

“Part of the background to the wording of regulation 7(3),”

which was at stake,

“and one of the matters that will need to be considered in examining the challenge to that provision, is a distinction drawn between sexual orientation and sexual behaviour”—

he italicised the words “orientation” and “behaviour”. He continues:

“As regards the protection conferred by the Convention, however, I do not consider there to be any material difference between them. Sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a person’s private life and identity.”

That is the subject of a later amendment, but it needs to be understood that I, and more importantly case law, do not recognise that distinction in discrimination law, as opposed to people’s opinions. Whether the Government agree is critical, and we will deal with that when we debate another group of amendments.

John Mason (Scottish National Party, Glasgow East)

The hon. Gentleman is basically saying that sexual orientation and sexual practice are so closely linked that they cannot be separated in reality. Does he also accept that religious belief and religious practice are so closely linked that they too cannot be separated?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is not what I think, but what judges who have interpreted employment regulations, the EU directive and the human rights convention think. I quoted a judge. Judges have recognised that sexual orientation and its manifestation—not any sexual conduct—are inextricably connected with a person’s private life and identity such that one cannot draw a distinction.

Case law may not show that judges have taken a similar view on religion. We could head down a series of paths had they done so. We will deal with that question separately.

Mark Harper (Conservative, Forest of Dean)

The reason why I have tried to probe the hon. Gentleman on what amendment 215 meant is this: given the nub of his argument about the nature of discrimination and employment and that we are going to spend quite a lot of time talking about schedule 9, would it not be better to deal with the issue there, rather than trying to introduce a sweeping amendment about the definition of religion? I am not aware of any mainstream individual who is outwith a religion because of one of the protected characteristics, as opposed to their practice and conduct.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

First, I concede the point that the amendment may not be the best drafted—I refer the hon. Gentleman to others on the amendment paper that were not selected. The debate may well be better placed or dealt with by a parliamentary agreement on the intention of the measure.

On the second point, I think that the hon. Gentleman has made a concession. He said that some people believe that sexual practice is a fundamental tenet of religion that has to be followed. My point was that convention law, and I believe our discrimination case law, make it clear that the manifestation of sexual orientation, whether heterosexual, homosexual or bisexual, is inextricably connected with sexual orientation. We are saying that in law, religious organisations are not entitled to justify religious discrimination to make a distinction between sexual orientation and sexual practice.

Sandra Osborne (Labour, Ayr, Carrick and Cumnock)

Although I accept that many organised religions do not accept homosexual sexual behaviour as being within their doctrine, it is contested, and many Christians do not agree with that position. The General Assembly of the Church of Scotland has recently voted to endorse a Church of Scotland minister who is currently living in a gay relationship and it is looking at the general issue. What would be the implication of a Church of Scotland decision to accept that position generally?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

On the narrow issue, I welcome that, but I am saying that what religions should believe is not my business. I am interested in protecting people under discrimination law from the potential impact of such beliefs. I have enough arguments with people of religion to seek new ones. I understand that some people sincerely feel that a person cannot be gay and be a priest.

However, paragraph 2(8) makes it clear that a religion is entitled when it selects priests to apply discrimination based on sexual orientation. I do not have a problem with Churches doing that. Whether or not I support the view of the General Assembly of the Church of Scotland, it is its business, as it should be. It should use the exception in paragraph 2(8) if it does not wish to take such decisions. The fact that the assembly has decided that it does not need to use paragraph 2(8)(a), even in a proselytising role, is of interest, but it is not my main point. My main point is that religions should not be able to use sexual orientation or its lawful manifestation as a basis for religious discrimination.

Mark Harper (Conservative, Forest of Dean)

I will be brief. First, the hon. Gentleman said that it was not his business to tell religions what to believe, but amendment 215 does exactly that. It says that the meaning of religion or belief has something to do with protected characteristics and what they can or cannot believe. Secondly, given that he has such a problem with schedule 9 and some of its contents, why has he not tabled any amendments to it?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I did not believe that we were dealing with schedule 9 this week. [Interruption.] I think it is useful to have the debate on this clause before deciding how to handle schedule 9. I support it in its current form. It would be bizarre to table amendments to something that I agree with, other than to probe the background. I do not think that saying in discrimination law that religion does not include sexual orientation in its definition is in any way telling religions what to believe. Under article 9.1 of the convention they have an absolute right to believe what they wish, as we all do. What they believe is a matter for them. The state has an interest and Parliament has an interest in protecting people from discrimination.

John Mason (Scottish National Party, Glasgow East)

The hon. Gentleman emphasises the link between sexual orientation and sexual practice. Would he accept that there is a link between religious belief and religious practice and that it could be discrimination against religious belief if we criticise and try to tell religious people not only what they have to believe but what they can put into practice?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We are all free to criticise everything. It would be a huge restraint on freedom of expression if we were not free to criticise anyone’s views, especially if they are contentious. As the hon. Gentleman knows, I fundamentally support the right of religious organisations to contend with each other as much as possible. That is why I have supported free speech initiatives in this House for a long time.

Case law’s view is this:

“Sexual orientation and its manifestation in sexual behaviour are both inextricably connected with a person’s private life and identity”

and so cannot be dealt with separately. We will come on to deal with whether a manifestation of religious belief is part of the definition and can be subject to a direct discrimination claim. The ruling in the Ladele case by the Employment Appeal Tribunal was very clear. If a service provider such as a council discriminates against a person who believes it is wrong to provide a service to gay people, it is not direct discrimination to subject them to detriment. It is indirect discrimination, clearly, and in the Ladele case it was found to be objectively justified. We can go into that when we get to that part of the Bill.

I need to deal with the point made by the hon. Member for Daventry. He talked about scandalous behaviour. It will not be sufficient—that is the whole point about anti-discrimination law—for gay people to be sacked on the basis that their lawful behaviour is deemed by their employer to be scandalous, whether that is a religious employer or someone else, unless the religious employer can cite the exemption given in paragraph 2 to schedule 9. The requirements need to be met. If it is a priest, it is not material whether they think it is just because the Bible says it is wrong, they think it is scandalous, or there is some other reason. The justification is not required as long as those conditions are met, but if it is clearly random it will make it more difficult to fulfil some of the conditions.

Simply saying that something is scandalous tends to discriminate on the basis of sexual orientation. That could enable someone to set a criterion in employment that someone who is gay cannot—or would not—meet if they act out their sexual orientation in their private life in a normal manifestation, which is their absolute right. It means that there will be no protection in employment law from discrimination based on sexual orientation. That is why the amendment, or a version of it, is needed somewhere, preferably in statute. I believe that it exists in case law to protect individuals from such discrimination, but I would be interested in the Minister’s view as to whether that is the case.

Tim Boswell (Conservative, Daventry)

I am grateful for the hon. Gentleman’s elucidation of my point. He says that it is necessary to produce a justification under paragraph 2 of schedule 9. As currently drafted, paragraph 3, which deals with “Other requirements relating to religion or belief” refers to

“a proportionate means of achieving a legitimate aim”.

Is he saying that that is not, or could not, be relevant in this context of behaviour? For this purpose, I draw a distinction between orientation and behaviour.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In my view, the distinction that the hon. Gentleman makes between a lawful manifestation of sexual orientation and sexual orientation is not valid, and I am backed up in that by the judgment that I read out. That issue will be dealt with later. I accept that we will have a shorter debate on the subject, Mr. Benton, as we have covered much of the issue now. However, I do not accept part of that premise.

Paragraph 3 of schedule 9 cites

“a requirement to be of a particular religion or belief”.

That requirement cannot refer to sexual orientation, or its manifestation in the terms that I have described—its own manifestation, not any manifestation or an unlawful one. That is what the probing amendment seeks to clarify. I think that I have got that point across.

A person can, however, seek to make that distinction in paragraph 2. In sub-paragraph (5), the application of a requirement on sexual orientation—which covers orientation or behaviour—engages the compliance principle, or the non-conflict principle in sub-paragraph (6), which is to comply with doctrine. That means that for proselytising or representative roles as set out in sub-paragraph (8), the distinction can be made.

I am trying to ensure that people are clear that they cannot make that distinction under the lower threshold in paragraph 3. The hon. Member for Daventry nods, and I think that he understands the distinction that I make, even if he does not necessarily agree with it. I hope that he will agree with it, as there is clearly an option that allows religions to do what he would wish them to do, if it can be justified under sub-paragraph (2), regardless of whether something is considered scandalous or simply non-doctrinal.

Tim Boswell (Conservative, Daventry)

For the avoidance of doubt, and so as not to weary the Committee with a long speech, I agree with the hon. Gentleman regarding the prevention of employment to somebody on the grounds of a characteristic that one does not like, which may not be under the person’s control. However, notwithstanding the strictures that he has brought about, I feel that we must have regard to a situation where the conduct of the person in practice, or their commitment to refrain from that conduct, is not sufficient to satisfy the authorities that it will not give rise to a scandalous situation. I do not think that it is sufficient to put that in terms of the representative activities that are adumbrated in paragraph 2 of schedule 9. However, I agree with the hon. Gentleman that that is the area in which we need to look for relief.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I regret that the hon. Gentleman has put it in that way and I hope that we can discuss what he is saying outside the Committee. We are going back to the ’50s. If being gay is scandalous— [Interruption.] I am not saying that the hon. Gentleman thinks that, but there are some religions that think it is scandalous. Those religions should not be able to use that as a basis for dismissing someone, or not employing them, unless they comply with the role set out in paragraph 2(8), which regards priesthood, or activities that are wholly or mainly involved in representative or religious promotion or work. I defend the right to make that distinction, but when it comes to a caretaker or a teacher in a faith school, lawful private behaviour associated with a person’s sexual orientation cannot be used as a basis—in my view, under the schedule—for their dismissal and the wrecking of their life and career. That is why we have modern anti-discrimination legislation. I do not seek to persuade religious people that it is not scandalous; I only seek to ensure that the law protects people from employers who hold that view about them either on the basis of their sexual orientation or because they are divorced.

My last point is that the example used by the Church in its written evidence—it did use the gay example in its oral evidence, which was appropriately honest—would also be unfair. If someone has a role not otherwise covered by paragraph (2)(8) of schedule 9, the fact that they get divorced—which might happen for all sorts of reasons, including domestic abuse—should not be a basis for losing their job unless they do a job where that is incompatible under paragraph (2)(8), which is itself an expression of the European directive to which we have signed up and essentially a treaty obligation to which we are committed, as well as being compliant with the European convention on human rights. It is only right that at some point we should meet the lobbying of Church and other religious organisations four-square, as I have sought to do. Not to do so would mean that they were wasting their time in urging us to address such points.

Tim Boswell (Conservative, Daventry)

The hon. Gentleman is beginning to draw out a sensitive argument. Does he not agree that in cases where the Church authorities have legitimate concerns, as opposed to cases involving a blatant attempt simply to pay somebody off because of their orientation, given that there is an interaction between religion and belief and other rights, it would be much more appropriate to seek some kind of mediation or resolution of any dispute rather than simply reaching for the litigation revolver and pursuing the matter through the court? It is a prudential issue. It would be possible for the Church authorities, for example, to explain the nature of their concern and the likely pastoral impact of the situation that might arise: in other words, an implied justification under paragraph (2) of the schedule.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

We are all in favour of mediation, but in the end, minorities who are discriminated against—there is no doubt that they are, and I know the hon. Gentleman’s personal commitment to ensuring that we eliminate such discrimination—must have recourse to the law, and the law should be clear. If it says clearly that paragraph (3) of schedule 9 cannot be used to say to someone who is gay or having gay sex, “You are not an orthodox member of X religion if you are sexually active according to your sexual orientation,” it would be helpful. Then the organisations will know that they must be able to defend their actions under some other provision.

David Drew (Labour, Stroud)

I have been biting my tongue for some time now. Can the hon. Gentleman understand the problem that some of us will have with it? If someone is dismissed, for whatever reason, they might immediately come back to the organisation that employed them and allege religious discrimination. Is that not a real and ongoing problem? We need to be assured that that is not what lies behind his amendment. We might wish to have this debate later in consideration of the Bill, when it might be more appropriate. That is what is at the root of the problem: religious discrimination could be alleged, regardless of the original reason for the dismissal.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I think that the hon. Gentleman means that one could allege sexual orientation discrimination regardless of the trigger for the dismissal. There is not a huge number of such cases, thank goodness. The Reaney case in the diocese of Chester went to an employment tribunal, which at first gave a ruling that did not satisfy either side as to the scope of the conditions in which sexual orientation can be used as a criteria. That is why, when we come to it, paragraph (2)(8) of schedule 9 is very useful, because it puts things clearly in a way that does not exist at the moment.

However, there are not that many cases. We want there not to be that many cases. It would be helpful if the law were clear that if someone has gay sex, it is a sexual orientation matter, not a religious matter. Regardless of what our views are, I hope that that need not divide the Committee on the grounds of individual religious belief. I shall deal with the second amendment in the group more briefly, but I hope that hon. Members will recognise that my contribution has been so long mainly because I have taken interventions.

Amendment 216 would, again, clarify the fact that the definition of religion or belief for the purposes of the Bill should not include support for matters of public policy or the policies of a political party. That is also restated in amendment 236, which was not selected because it was tabled after the deadline for selection. Amendment 216 makes the point that it is important that, for example, religious employers—although it extends beyond employment—cannot say that someone will not fulfil a religious criterion if they are, for example, pro-choice. It is certainly the case that orthodox Catholic doctrine is not pro-choice; it is anti-abortion. However, that issue should not be the basis on which a religious criterion should be judged to be met, because it goes too far away from doctrine and theology towards matters of public policy. In a sense, we would be allowing a political test—not necessarily a party political test—that should not otherwise exist, to benefit from the wider exemption that exists for religion or belief. It may well be the case that employers require—as we do in Parliament—a political test, and that is lawful. However, that should not be dressed up as part of the definition of religion or belief.

Mark Harper (Conservative, Forest of Dean)

This is the second amendment in this group in relation to which the hon. Gentleman is attempting to define what is or is not a religious belief. The point that he just made goes to the heart of the issue. For religions that take a pro-life position and have a particular view of when life starts, such opinions are a fundamental part of their belief. Indeed, that is recognised as such in our present law—I think that he acknowledged this during the evidence sessions—given that we allow professionals involved in medical services not to be involved in delivering and procuring abortions if that is something that offends against their conscience. I think that he did not disagree with that, because he recognised it was the law. In relation to this part of the Bill, why is he again trying to define what religions are or are not allowed to believe?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful to the hon. Gentleman for his useful intervention. One of the reasons why I am seeking to clarify the matter is that I believe that exemptions such as those that exist in the Abortion Act 1967 and the Human Fertilisation and Embryology Act 1990 should be statutory. They should be set out in statute—as, indeed, they are—and in so far as that legislation goes, I support such measures. However, I am seeking to clarify the fact that I do not believe that such provisions should be applied generally. In other words, people should not be able to look to non-discrimination on the basis of religion and belief and seek protection from discrimination when they are, for example, a doctor who says that it is their religion or belief that unmarried women should not be prescribed the contraceptive pill. If their medical employer or the General Medical Council seeks to insist that they do what I would consider to be their job as a doctor and says that they should provide the appropriate clinical care—including providing a prescription or a supply of contraception to women who are entitled to have it whether they are unmarried or not—they cannot rely on a claim of direct discrimination. It would be helpful to make that clear, which is why the hon. Gentleman has done us a service by making that point.

I am not saying that there should be no statutory exemptions on the grounds of strongly held religious belief—for example, in relation to doctors who do not want to play a part in providing abortion services. I am on the record as supporting the compromise that was fashioned in a room in the basement in 1967 by Lord Steel and others, and I do not seek to remove it. It is a separate statutory exemption, and I believe that it needs to be; we should not allow any creep of protection from religious discrimination to cover it.

The other area that I am concerned about is the increasing politicisation of religion in the form of religious parties, such as the Islamic party of Britain and the Christian Peoples Alliance. I strongly support their right to exist and to run as political parties. I am in favour of free expression and of religious organisations coming directly to the political table, as well as indirectly through the impressive lobbying work that they do as lobbying organisations. However, when bodies such as the Christian Peoples Alliance are seen as political parties, it is important that they do not think that they uniquely, as a political party, could cite protection against discrimination on the grounds of religion or belief to give them special privileges, in a way that the Conservative party, the Labour party, the Liberal Democrats or the Scottish nationalists could not. For example, if the Christian Peoples Alliance and other smaller parties were not invited to a hustings—although I believe that everyone is entitled to be invited, including the British National party if it has paid its deposit and is standing—such a party could not claim religious discrimination on the basis of who the people signed up to it are.

My final point on this matter is intended to make it clear that the theological basis for believing that life begins at conception is okay. There is nothing wrong with that, or with the political expression of that in public policy. All the amendment says is that one cannot rely only, or at all, on the degree of support for matters of public policy or for the policies of a political party. Therefore, it is fine if someone happens to support the ProLife Alliance and also happens to demonstrate that they are of that religion, but it is the latter limb and not the former that is the important provision. Otherwise, one could have people who are not theologically of that religion but who subscribe to that policy platform to seek the protection of the anti-discrimination legislation that exists for matters of religion or belief but not for maters of political belief. It is therefore important that we recognise that the religion or belief that we are seeking to protect is a theological one and not a matter of public policy. On the basis of probing those two important areas, I commend the amendments to the Committee.

John Mason (Scottish National Party, Glasgow East)

As this is the first time that I have spoken on a matter of religion in this Committee and as I suspect that we will have a lot of discussion on religion in the sittings ahead of us, I want to make it clear that I speak personally and not as a spokesperson for my party.

Among the wider public there is a lot of concern about some of these issues, but I accept that those of us who are seriously involved in religion are probably a minority in society. I guess that the committed Christian population is around 5 per cent. I know that there are people in my party and I guess in other parties here who would question whether we should even be discussing some of these issues, as we try to tie together sexual orientation, sexual behaviour, religious belief and religious behaviour and practice. This can be a difficult area, but the Committee should have the opportunity to discuss the place of religion in our society.

Some people feel that religion is the poor relation of the protected characteristics, and there is some evidence that employers and others will tend to decide against religion if there is a clash of rights. If it is the considered opinion of the Committee and of Parliament as a whole that religion should come last, let us make that clear and accept it. However, the matter should be discussed. I accept that the wider Church has been very intolerant of minorities in the past, and perhaps the rest of society now feels that it is time for the Church to take a bit of a kicking for the next few years. If that is what society feels, it has some right to do it.

I might disagree with the hon. Member for Oxford, West and Abingdon on a few things, but I respect his consistency and the fact that we know where he is coming from. I hope that the Committee will not accept the two amendments, which are not necessary and would damage religious freedom. One purpose of the Bill is meant to be protection against anti-religious discrimination, not enshrining it. The explanatory statement accompanying amendment 215 says:

“This is to make sure that organisations or individuals cannot use exemptions based on religion or belief to discriminate on another ground for example against persons whose lifestyle, because they are gay or unmarried, is not consistent with orthodox practice of that religion or belief.”

That recognises that the orthodox teaching of most of the main world religions—Christianity, Islam and Judaism, although there are others—is that sexual activity outside marriage is morally wrong, yet the amendment seeks to dictate to adherents of those religions that they could not apply such teachings in their own affairs. It would tell them that they could not live those teachings out and ensure that certain manifestations of orthodox religious faith were illegal.

I used the words “seeks to” because, as we heard last week in the evidence session relating to schedule 9, there are large question marks over whether the Bill narrows the already fairly limited protections for employment in Churches. All such religious organisations want is to be able to insist on staff whose lifestyle does not contradict the teaching of their religion. It might be that the effect desired under amendment 215 is already achieved under the Bill, but we shall return to that another day.

The views on sexual ethics that amendment 215 targets are mainstream views that religious groups generally hold and have held. Along with views on many other ethical issues untouched by the Bill, those views are very dear to them. They have upheld such beliefs in their churches and places of worship, in their own internal affairs, with little complaint, and it is what they teach from the pulpits and what they try to practise in their own lives.

Whether we agree with those religious groups is not the real issue, and as parliamentarians surely we do not exist to legislate on the beliefs of adherents to any religion. It is hard to see why there should be opposition to the idea that religious groups should regard living in accordance with their teachings on sexual ethics as a necessary part of observance of their faith. There are two sets of employment protections for religious groups—that has already been referred to. One set allows for discrimination based on religion or belief, while another allows discrimination on other grounds, such as sexual orientation. They are referred to under paragraphs 3 and 2 respectively of schedule 9.

Amendment 215 would impose further limits and protections, which already require religious groups to jump through hoops just to maintain their basic freedom of association. It would provide more opportunity for people hostile to the views of religious organisations to try to haul them before employment tribunals in an effort to make them change their beliefs. We have already seen that in cases brought against Christian organisations by the British Humanist Association and by Stonewall.

Churches and other religious organisations—and, I would suggest, non-religious organisations—should have the right not to employ someone with views seriously at variance with their basic teaching. Surely we should leave such cases well alone and promote diversity and understanding, rather than a uniform greyness in our society.

It is my desire not that the Churches impose their will on everyone else, but that we, as minority groups, should be able to live with each other in society. Do we really want to make it easier for people to sue Churches?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Does the hon. Gentleman recognise that it would be illegal, and rightly so, for a gay organisation or a gay bar to sack someone on the basis of their religious belief? Are not the amendment and the Bill, with which he disagrees, just asking for reciprocity and recognising that there are narrow exemptions that get religious organisations and employers out of that duty of reciprocity? Does he accept that religious people benefit from anti-discrimination legislation because they are protected from being dismissed on account of their religious views?

John Mason (Scottish National Party, Glasgow East)

I am totally committed to reciprocity, if that means that we treat each other equally and respect each other’s differences even when we disagree. I am not looking for special protection for religious groups. However, I suggest that a gay organisation should expect, when recruiting, that someone working for it should be committed to its ethos, as I would expect in the Churches. If someone is working for a gay organisation and changes their views to the extent of being opposed to that organisation, the long-term employment relationship would be extremely difficult.

Tim Boswell (Conservative, Daventry)

Further to the intervention that the hon. Gentleman is dealing with, before the memory of it fades, would he not agree that one of the concerns for people with religious faith is that some of the protections already in place may not be as strong as previously thought, or may be faltering? I am thinking, for example, of persons of faith and their attitude to Sunday employment.

John Mason (Scottish National Party, Glasgow East)

A number of religious groups—I am not saying that it is all of them—would perceive that there is a move in society broadly against religion. Things that were assumed in the past, such as no ferries in the Western Isles on Sundays and such like, are being challenged or questioned, whereas in the past people accepted them without really thinking about the matter.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I want to bring the hon. Gentleman back to his remarks on ethos—I know he has his notes to hand. Is he saying that one can be correctly perceived as opposing the ethos of an organisation merely on the basis of one’s sexual orientation?

John Mason (Scottish National Party, Glasgow East)

Earlier, the hon. Gentleman was saying that we cannot distinguish between sexual orientation and sexual practice. I am now wondering whether he is suggesting that we are separating the two. I must admit that I am somewhat confused by his position.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I shall ask the question in two parts. Regardless of whether the hon. Gentleman believes that sexual orientation and the manifestation of that sexual orientation in a lawful way are one and the same, does he believe that simply by being of a certain sexual orientation one can be against an ethos of an organisation? Or does he believe that, by practising the manifestation of that sexual orientation within the law, one can be against the ethos of that organisation? Is that his contention?

John Mason (Scottish National Party, Glasgow East)

What I am trying to say is that a religious organisation might perceive its ethos and standards as tighter than, and being of a different level from, what is allowed in society generally. Going back to the example of a youth worker, which is specifically mentioned as an example on page 181 of the explanatory notes, someone who is working for a Church as a youth worker, effectively in a pastoral role with young people and teaching them that the only place that they should have sex is within a committed marriage, it is difficult to consider how that person could themselves believe the exact opposite, whether it be sex outside marriage with the opposite gender or with the same gender. I find it hard in that situation to split between sexual orientation and sexual practice.

Going back to my speech, these are religious matters that are internal to religious organisations. We should tread carefully before legislating on such sensitive issues. People who disagree with the beliefs of religious organisations have the freedom to seek employment elsewhere, but religious organisations have nowhere else to go to exercise their freedom of association if the law forces them to employ people who reject the tenets of their faith. I am happy to accept that it is more difficult once someone is in employment and changes their position. However, the large majority of cases that we are thinking about arise when recruiting staff. Strangely enough, although the explanatory statement mentions the unmarried, it is perfectly legal to dismiss a church youth worker who moves in with a partner of the opposite sex. Nothing in the Bill would change that—it would still be lawful. The hon. Member for Oxford, West and Abingdon explained a little more about what he meant by amendment 216. I have been left guessing as to what kind of organisation he was referring to.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am not sure that that is right. I would be grateful if the Minister clarified the situation in her remarks. I am not sure that a heterosexual, having lawful heterosexual sex, is not a manifestation of their sexual orientation. I agree that the issue is trickier, because they are not usually a discriminated-against group. I caution the hon. Gentleman against asserting so solidly that someone can be dismissed on the basis of a lawful relationship in their private life unless they are covered by the narrow provision that deals with those in a proselytising role—if I may describe paragraph 2(8) of schedule 9 in that way—especially under the European convention on human rights.

John Mason (Scottish National Party, Glasgow East)

I stand to be corrected by those with greater legal knowledge, but as a general principle, many associations that have nothing to do with religion have sets of rules that it is possible to break while remaining within the law. An example is having to wear a tie in Committee. There is therefore a distinction.

We received clarification earlier on the kind of organisations at which amendment 216. For example, political parties with a religious bent should not receive special treatment. I am happy to agree with the hon. Member for Oxford, West and Abingdon on that point. I am probably less sympathetic to religious parties than him because I would rather see people of religion in all parties. However, the proposal could damage religious organisations whose beliefs overlap incidentally with certain public policy positions. For example, a requirement that an employee believes in good stewardship of the environment would be a natural outworking of the faith of many religious bodies. However, it appears that amendment 216 would allow somebody who rejects that belief to claim that they are being unlawfully discriminated against if they are turned down for a job. Similarly, religious groups that believe that marriage should be promoted in public policy could be sued, even though a belief in that view is an obvious requirement for them to make of a new employee.

Many religious bodies are also registered charities. They cannot advocate support for political parties, but the Charity Commission recognises their freedom to advocate positions that overlap with those of political parties. The commission’s guidance document, CC9, “Speaking out: Guidance on Campaigning and Political Activity by Charities”, states under the heading, “Support for policies”:

“It is acceptable for a charity to advocate support for a particular policy advocated by a political party or candidate, provided that the policy supports the charity’s purposes. However a charity must not support a political party or candidate.”

Clearly, if a charity advocates a policy and is recruiting a worker to promote it, the charity must be able to insist that he or she supports that policy. The fact that the charity is religious should not deprive it of that freedom.

If amendment 216 achieved its goal, it would create an obvious injustice, because we as political parties can impose requirements about supporting policy positions on our staff, yet religious groups would be deprived of that freedom. As it happens, some politics is not protected ground. Any employer, religious or not, could require support for a political party as a pre-condition of employment and nobody could sue them. I do not advocate that, but I simply point out that one cannot sue for political discrimination—and rightly so, because that would create a minefield.

Finally, it is ironic that the hon. Member for Oxford, West and Abingdon tabled amendments 215 and 216, as well as amendment 217 in the next group. I do not intend to speak to it, but it is worth pointing out that although amendments 215 and 216 would impose new limits on the manifestation of religion, amendment 217 would widen the legal right to manifest sexual orientation. That would mean religion being further relegated within equality law and more narrowly defined than other strands. I hope that the Minister and the Committee will not give religious bodies further cause for concern about the impact of the new legislation and will oppose the two amendments.

Vera Baird (Labour, Redcar)

The intention behind amendment 215 is to ensure that organisations or individuals do not misuse the various exceptions available to religious organisations to discriminate against people unlawfully because aspects of their lifestyle, such as sexual orientation, are not in keeping with the tenets of the religion or belief in question. My note says that that fails entirely to understand the construction of the Bill, but I will not read it out.

The Bill identifies each of the nine characteristics that we are seeking to protect and gives precise definitions of what constitutes each of them. As such, it is clear what each characteristic is and what level of protection is afforded to it. Although I appreciate that a person’s religious belief should not be used to justify unlawful discrimination, I consider that the Bill makes it entirely clear that that is not permitted.

Where discrimination takes place, the protected characteristic is the ground on which the discrimination takes place. Any protected characteristic that the perpetrator of the discrimination may possess is not relevant. For instance, the exception available to religious organisations in schedule 23 sets out exactly what such organisations can and cannot do in relation to other protected characteristics.

Where a person is discriminated against because of his or her sexual orientation, the reason for that discrimination is because of their sexual orientation, irrespective of the motive of the person actually causing the discrimination. It would not matter that a person claimed that they were acting in a particular way because of their religions beliefs. The discrimination would still be because of the characteristic of sexual orientation, so any exception that could be considered applicable because of religion or belief would not come into play.

I pause just to appreciate and acknowledge the concerns of the hon. Member for Glasgow, East, were the Government to accept the amendments—which they will not do. He knows that there are some religious exceptions. Indeed, Committee members have debated those a little bit this afternoon, even though we have yet to reach them because they are in schedule 9. However, we do not think that those exceptions have narrowed. We have no intentions of facilitating a kicking for religion in any way at all. The religious exceptions have been carried forward in the way that they were before. The hon. Gentleman made a number of significant points, but, with respect to him, I will not rehearse them in detail, because we will not accept the amendments. Therefore his worries can, I hope, be set aside.

On amendment 216, the same answer that I have given on the question of sexual orientation applies to public policy. Adhering to a particular aspect of public policy is not a protected strand, but if there were some way in which it was discriminatory to deal with somebody for holding a particular belief, somehow, within one of the protected characteristics, then the reasoning why it was done and the religious position that gave rise to that discrimination would not facilitate the actions of the person who, none the less, discriminated, because, as I have already said, the discrimination would be because of the characteristic protected. Despite there being a religious motivation, that does not save anyone from being guilty of discrimination.

The Bill makes it clear—I am not sure whether the hon. Member for Oxford, West and Abingdon thought it did not—that a person’s political beliefs are not captured by any of the provisions that apply to religion or belief. There is abundant case law showing that political beliefs are not covered by the current legislation, which the Bill mirrors, pretty well precisely, and that case law will still apply. The explanatory notes reiterate that point. I am sure that the hon. Gentleman has read those notes and seen that that is so.

It is pretty clear already that a person’s political beliefs would not be captured in the way that amendment 216 seeks to prevent. I hope that I have dealt with the point regarding public policy and I have said all that the Government wish to say about amendment 215. I respectfully urge the hon. Gentleman to withdraw amendment 215. It has been a most interesting debate.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will withdraw the amendment. I am grateful that the Minister asked me respectfully and I am glad that we are back to civil exchanges. She made some valuable points about the motivation not being a factor. I will reflect on that. I think that we will be able to have shorter debates on other parts of the Bill, because we have rehearsed some of the arguments. I therefore beg to ask leave to withdraw the amendment.

Clause 12

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 217, in clause 12, page 8, line 16, at end add—

‘(3) Sexual orientation includes manifestations of that sexual orientation.’.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss amendment 220, in clause 13, page 9, line 27, at end insert—

‘(7A) If the protected characteristic is sexual orientation, A discriminates against B if A treats B less favourably than A treats or would treat others on the basis of a manifestation of B’s sexual orientation.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Before I am interrupted by the bell, I should say that the debate that we need to have on this matter will be much shorter than we would otherwise have had—

Ann Winterton (Conservative, Congleton)

I remind the Committee that with this we are discussing amendment 220, in clause 13, page 9, line 27, at end insert—

‘(7A) If the protected characteristic is sexual orientation, A discriminates against B if A treats B less favourably than A treats or would treat others on the basis of a manifestation of B’s sexual orientation.’.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am pleased to welcome you to the Chair again, Lady Winterton. In the 20 seconds that I had before we adjourned our earlier sitting, I said that I thought we could get through the amendments quickly, as the main point behind them had been debated to a significant extent in our previous sitting.

The two amendments are essentially equivalent. One amends clause 12 and would provide that sexual orientation includes manifestations of sexual orientation. Another, possibly slightly better drafted amendment, starred amendment 237 in the amendment paper, amounts essentially to the same thing, which is that sexual orientation

‘includes manifestations of any such sexual orientation.’.

Amendment 220 on page 147 of the amendment paper amends clause 13 and deals with direct discrimination.

I explained earlier that the concern was to put the provisions clearly into statute law with the point of probing what the case law is in that respect, not only because it is right and proper that manifestations of sexual orientation are—to quote the judge again—“intimately wrapped up” with one’s sexual orientation, but because it will help to make it clear to the public, and particularly to employers, that they cannot rely on a distinction between sexual conduct where it relates closely to sexual orientation and sexual orientation itself.

I explained that there is a request, bordering on an expectation, that employers will be able to do so when I referred to memorandum E14, which we received from the Catholic Bishops Conference. The memorandum says that the Catholic Bishops Conference would want to apply a conduct test, even for, it is implied,

“a residential caretaker post if it involves routine contact with the local Catholic community.”

It went on to say that

“there is a whole range of posts, paid or voluntary, where it is essential that the Church has the right to prefer a candidate whose life is in accordance with its ethos; these might include, for example, youth workers, members of marriage preparation teams, and parish secretaries. What all these have in common is a pastoral, representative, or functional role where their effectiveness in the post for which they are being paid would be severely limited if their life were openly at variance with the teachings of the Church.”

That is an interesting phrase. I do not know whether “openly” implies that it would not be an issue if they kept their private life to themselves, or whether the employer would seek to investigate their private life.

John Mason (Scottish National Party, Glasgow East)

Does the hon. Gentleman accept that the link between sexual orientation and manifestation varies? For some people, there is little gap between them, but for other people, particularly in the Catholic Church, where nuns and priests take a vow of celibacy, there is a large and distinct gap.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not want to repeat everything that I explained previously, but where a post falls within paragraph 2(8) of schedule 9—that includes proselytising roles such as nuns and priests, any representative function and any post predominantly involved with liturgy or the teaching of theology—an organisation would be entitled to discriminate on grounds of sexual orientation. That is not the question. The question is whether, even where those requirements are not met, such organisations can seek to say that they are discriminating not on grounds of sexual orientation, but mainly on conduct. I think that I have clarified that there is such an expectation in the written evidence and elsewhere.

It is important to stress the examples given by religious organisations in the Amicus case. In his judgment in Amicus and others v. the Secretary of State, given on 26 April 2004, the honourable Mr. Justice Richards gives examples of where religious organisations are very clear—and, to their credit, they are very clear and consistent on this point—that they want to cover conduct without falling foul of the normal sexual orientation provisions. For example, in paragraph 33, he quotes Roger Smith, who was then, and might still be, head of public policy at Christian Action Research and Education, stating:

“Any inappropriate sexual activity on the part of an employee would be considered grounds for dismissal. This would include behaviour amounting to adultery from a married member of staff, and any other inappropriate sexual conduct by unmarried members of staff. This would include an unmarried employee’s sexual activity with a member of the opposite sex or with a member of the same sex.”

It is clear that the wish is to discriminate on grounds of homosexual activity. Similarly, in paragraph 34, Mr. Justice Richards cites Mr. Martin Eden, director of strategic development for the Evangelical Alliance, saying:

“We affirm God’s love and concern for humanity, including those with an orientation towards people of their own sex, but believe homoerotic sexual practice to be incompatible with His will, as revealed in scripture.”

In paragraph 35, Hilary Reeves, director and chairman of the trustees of the Christian Schools Trust, talks about teachers, who are clearly not priests:

“The teachers’ own lifestyle must be a righteous one, as defined above. That must, by definition, exclude from being a teacher in one of our schools a person whose lifestyle is known, or is reasonably believed, to include unrighteous acts as listed above.”

Included in that is

“sexual intercourse with a person other than one’s spouse outside marriage, with a close member of one’s family, or with a person of the same gender.”

Leaving aside the comparison between lawful sexual activity with someone of the same sex and the unlawful activity of incest, and the equivalence, which those organisations are entitled to make, between homosexual activity in a faithful relationship with adultery, it is clear that they wish to include such conduct as grounds for dismissal. I am asking in both of these amendments for that to have to be justified on the grounds of sexual orientation.

During the oral evidence from William Fittall of the Church of England, when he was drawn on this matter, he said that

“it is reasonable that restrictions—whether they be on marital history or whatever—can be part of the requirements.”————[Official Report, Equality Public Bill Committee, 9 June 2009; c. 69, Q127.]

That is, requirements which are imposed on people on religious grounds, the sort of requirements in schedule 9, paragraph 3. I asked him whether he meant gay people, and his answer, which can be read in columns 69 and 70, was clear that, even if it did not mean homosexuality, it did include homosexual conduct.

I have already read the ruling of Mr. Justice Richards in the previous debate, so I will not repeat that, but he makes clear in his conclusions, in paragraph 119 of his judgment, his view, which was not contested by either side, that

“the protection against discrimination on grounds of sexual orientation relates as much to the manifestation of that orientation in the form of sexual behaviour as it does to sexuality as such.”

He says that he has already mentioned that when looking generally at the fundamental rights issues in the case.

I hope, therefore, that the Committee recognises not only that there is a call for sexual conduct to be grounds for dismissal or a detrimental treatment, and to be seen as separate from sexual orientation, but that the case law is clear that that is not permitted. Furthermore, we should argue on principle as a Committee, and the House should take the view—

John Mason (Scottish National Party, Glasgow East)

Is the hon. Gentleman suggesting that case law would overrule this statute?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

No. That is exactly the point I am making. I am asking that the statute make it clear what existing case law is, because that case was taken to clarify the statute. In a sense, the statute was clarified by that judgment. It was in the High Court, so it has precedence, but clarification would be helpful because, despite the judgment, there is still the assumption, or the request, that this sort of discrimination be permitted.

I think that the case law is clear. The intention of the Government at the time of the employment regulations on sexual orientation was clear. Even if it was not, the judge agreed with the Government’s position in his conclusions on the case. The Government did not appeal on that point. The current intentions of the Government are clear on the point, but because this is a live issue and there is public debate, it would be wise to make that clear in statute as well. As I have said, this is not an attack on the beliefs of Churches, which are entitled to their beliefs. It is about protecting the right of gay people not to be discriminated against, in employment as well as in other areas, on the grounds of sexual orientation under the proxy of their conduct not being protected under sexual orientation legislation. That is what these probing amendments seek to make clear.

Mark Harper (Conservative, Forest of Dean)

It is good to see you in the Chair this afternoon, Lady Winterton. You missed our exciting debate on this very subject this morning. We, however, did not, so I will be brief.

The only point that I would like to make at this stage is that, as we did this morning, we appear to have quickly moved on to schedule 9, which we will debate in due course. I will only mention it briefly, Lady Winterton, so as not to test your patience. It seems to me that all the points that the hon. Member for Oxford, West and Abingdon has made, most of which I do not agree with, we can debate when we get to schedule 9; we can debate paragraphs 2 and 3 of that and the extent to which organisations can do the various things that he is suggesting they can. It seems that, under both this clause and the previous one, he is trying to pre-empt that debate and to set down much wider conditions than are necessary for this case.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am interrupting the hon. Gentleman, although he did not interrupt me. This does not apply just to schedule 9. I was using that as the best exemplar because in the provision of services there are restrictions on discrimination on the grounds of sexual orientation. I would not want to see, and I hope the Government would not want to see, people discriminating in the provision of services on the grounds of conduct that is intimately related to sexual orientation by claiming that it is not sexual orientation discrimination. In order to avoid having this debate under both those schedules and where it applies elsewhere, one has to have it under either the definitional clauses or under the clauses that describe direct discrimination. I do not think that there is any alternative, otherwise I would certainly have raised that when we considered the schedules as an alternative.

Mark Harper (Conservative, Forest of Dean)

I am grateful to the hon. Gentleman for clarifying what he is trying to do. The reason I think that what he is doing is faulty relates to the points that he is making in this debate, using schedule 9 as an example of why his amendments are justified. Having listened carefully to what he is saying about the paragraph in schedule 9 that details other requirements relating to religion or belief and what that would or would not allow someone to do, I am not clear that organisations would be able to do what he says they would be able to do. The wording of the schedule will not allow people to do what he is complaining about. Therefore, I do not think that his justification for these changes is sensible. I am just picking up his one point. I do not wish to sound like a broken record.

I also want to echo the point made by the hon. Member for Glasgow, East. From a religious perspective, referring to the particular Church he mentioned, the Catholic Church, there clearly is a difference between sexual orientation and sexual practice, particularly in the roles of a proselytising nature, priests and nuns and so forth, given the vow of celibacy that priests and nuns take. For that religious organisation, there is a clear difference and I would have thought that a religious organisation above all would be capable of seeing the difference. I am not persuaded by either the lengthy discussion we had this morning or by the hon. Member for Oxford, West and Abingdon’s argument that these two amendments should be carried by the Committee. My final point, on which I am sure the Solicitor-General will be in agreement, is that I am clear that he does not speak for the Government.

Vera Baird (Labour, Redcar)

I second that.

I shall keep this simple, I hope. These amendments seek to make explicit the fact that it is unlawful to discriminate against a person on grounds of manifestations of their sexual orientation—appearance, lifestyle, the people they see, the places they go. However, the hon. Member for Oxford, West and Abingdon answers his own amendment, because it is absolutely the case that Amicus v. the Secretary of State for Trade and Industry has interpreted sexual orientation regulations to say that such orientation includes manifestations of sexual orientation. We have replicated the words in those regulations in the Bill, in so far as they are relevant. Consequently, there is simply no need to do any more; the law is absolutely clear.

By way of a footnote, the amendment would introduce a needless anomaly, because we would put manifestation into the definition of one protected characteristic without putting it into any others. There might be manifestations of being a white British person, I suppose; always singing “Down at the old Bull and Bush”, or going foxhunting, or whatever we do.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I accept the Minister’s point that the amendment would bring manifestation into just one protected characteristic. I agree with her because, as she said, I pointed out in my contribution that the case law is clear. I was making the point that there might be some merit in having the statute clear because of the demand for that, since not every employer is able to access the case law as easily as they would the statute. It might be particularly relevant in this area, which is the only one, as far as I know, where it is such a live issue. No one can doubt that it is a live issue after the contributions that our witnesses and, indeed, other hon. Members have made. Is there some merit, then, in clarifying the statute, as well as what the Minister said about the law?

Vera Baird (Labour, Redcar)

No. Quite honestly, the hon. Gentleman is stretching it now. When we debate schedule 9, and whether the exceptions are wide enough or too narrow, the hon. Gentleman can raise those issues again—and I have a dreadful feeling that he will. However, the law is plain. The regulations have been interpreted by the court. That is how our legal system works. The rule is that sexual orientation includes manifestations of itself, and that would be unlawful discrimination. There is no need for more.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I note what the Minister said, and I am not surprised that she recognises what the law says, which is in agreement with the point that my amendment makes. That should give other hon. Members pause to consider what implications that has. I recognise her position that, just because something is made clear in case law, it does not have to be replicated in statute law. However, in defence of my approach, that is not always the approach that the Government take. They sometimes seek the opportunity to put case law into statute, as they quite rightly have with paragraph 2(8) of schedule 9. Nevertheless, on hearing what the Minister says I am quite happy to beg to ask leave to withdraw the amendment.

Clause 13

Mark Harper (Conservative, Forest of Dean)

I beg to move amendment 7, in clause 13, page 9, line 5, leave out ‘because of’ and insert ‘on grounds of’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss amendment 132, in clause 13, page 9, line 5, leave out ‘because of’ and insert ‘on the grounds of’.

Mark Harper (Conservative, Forest of Dean)

These measures should need only a relatively brief debate. My amendment is similar in nature to amendment 132, tabled by the Liberal Democrats, and it would leave the words “because of” out of clause 13 and replace them with “on grounds of”. That would effectively put the wording in the law back to what it is at the moment. The reason for doing that is twofold.

First, the “on the grounds of” formulation is consistent with all existing legislation and with European equalities legislation. It is the language that existing case law is already based on, and it therefore gives certainty.

Tim Boswell (Conservative, Daventry)

The cardinal point, and probably the only comment that I need make on this amendment, is that any divergence or departure from the existing “on the grounds of” is likely to give rise to legal argument. As my hon. Friend has already said, it may well create further uncertainty or perverse or difficult judgments that eventually have to be amended. It would be far better to stick with what has been seen to work since the introduction of disability discrimination in law.

Mark Harper (Conservative, Forest of Dean)

My hon. Friend is absolutely right. This is the only reason given in the explanatory notes for changing the wording:

“This change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Bill.”

I am not quite sure who the ordinary user of the Bill is and it seems to me that the ordinary users of most Acts of Parliament are lawyers, who would be perfectly capable of understanding either formulation. However, it seems that there is a problem if something is changed that is well recognised—we may set up lots of unforeseen consequences.

Indeed, the Equality and Human Rights Commission is supportive of amendment 7, as is Citizens Advice, so there is clearly a fair bit of concern that there may well be some negative consequences in changing the wording and I am unconvinced by the reason given. The Minister says in the explanatory notes that it does not change the legal position, and she will no doubt repeat that, but given that there are no significant benefits and there are risks that are clearly felt by a number of organisations, will she reflect on whether that risk is worth taking?

The second reason—this is where I suspect there is an argument about whether the measure does or does not change the legal definition—is that the use of the word “because” may indicate that it would have to be established that the discriminator consciously intended to treat someone less favourably on the protected grounds. On the current legal position, proving intention is not required, so the “because” formulation may raise the threshold for proving discrimination claims in that the complainant may be required to prove a conscious motivation to discriminate. That is what lies behind the concern from those organisations that this measure may represent an inadvertent change in the law—they accept that it is inadvertent.

The final concern is that treating someone less favourably because of a protected characteristic might be read as meaning that the protected characteristic must be the whole or the main reason. Under current law, the protected grounds should in no sense whatever be the treatment in question, so covering less favourable treatment, which is only partly attributable to the protected characteristic. Putting the word “because” in the Bill could change the established understanding of what is required, so introducing, as my hon. Friend the Member for Daventry said, a lack of clarity, which may also provoke more unnecessary legal challenges.

The Minister really needs to do the job of explaining not just why the Government believe that this measure does not change the law, but why a change of wording is necessary. Given that the Bill is carrying over existing legislation, making a change requires more than the Government saying it does not make any difference; they need a good reason for making the change, given that some organisations think there are significant risks involved. I will listen carefully to the Minister, and if we are not persuaded by what she says we may seek to test the mood of the Committee.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I shall speak to Liberal Democrat amendment 132, which is not greatly different from the Conservative amendment. It differs only in the word “the”, which we are quite happy to go without. We will support the Conservative amendment, because we agree that this measure might open the door to legal wrangles.

Tim Boswell (Conservative, Daventry)

I am grateful to the hon. Lady for her slight variant on our amendment, because I think it is the first time in recorded history that I have ever spotted the Liberal Democrats using a definite article about anything.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I do not know—this place! Talk about reform! Given that the measure might open some legal argument or wrangle, and given that the existing wording has been the subject of much testing and is tried and tested, it seems unnecessary to open it up to further interpretation of meaning when that meaning is already proven in case law. To get rid of that uncertainty, we will support the Conservative amendment.

Vera Baird (Labour, Redcar)

One of the key objectives of the Bill is to simplify the law and make it more accessible. I do not think for one minute that the only people who are going to read it are lawyers, the easy-read bit at least. We deliberately put the plain English—the explanatory notes—face to face with the necessary legalese to make the Bill accessible to people way beyond lawyers. With that principle in mind, it makes sense to talk in ordinary English language.

The word “because” is much more natural when one looks at the reason for something. If someone is asked, “Why did you do such a thing?”, the answer will mostly likely be, “Because.” It is highly unlikely that people will say “on the grounds of”, and that is the point. However, the two terms mean the same thing. I do not know what they mean in—I am glad that the hon. Member for Oxford, West and Abingdon is here to hear me mention it again—the “Evan Harris English Dictionary of Peculiar Terminology”, but in the “Oxford English Dictionary”, the word “because” is defined thus:

“By reason of, on account of”—

on the grounds of. It is absolutely spot on and synonymous. I do not think that it can be argued that there is any difference of meaning—they are absolutely synonymous.

The question in a case of direct discrimination is, “Why was he treated in that way?” The answer would be, “Because”, and that is what we need to capture. It need not give rise to any legal wrangles. The courts are now rejecting suggestions that a change in language necessarily implies a change of meaning. There is no change of meaning. I have said it twice; perhaps I have said three times now. It is very clear that there is no change of meaning.

In a 2005 case, Regina v. Z in the House of Lords, Lord Woolf said:

“Techniques in drafting of section 3 of the 2000 Act and section 19(3) of the 1973 Act differ. Section 3(1) of the 2000 Act is drafted more succinctly and more clearly than its predecessor. It is in a crisper, more contemporary style. However, there is no reason to think that the difference in style means that it should be interpreted in any different way from its predecessor in the 1973 Act.”

All the less reason for any court to think that it should be interpreted differently. Now I am saying for the fourth time: there is no change in the meaning from the change of words.

Tim Boswell (Conservative, Daventry)

I am grateful to the Solicitor-General, not least for the assurance that she has given the Committee, which no doubt will be remembered and may even appear in the courts in due course. It occurs to me—I defer to her legal knowledge—that “on the grounds of” is, in a sense, a more specific set of tests referring to particular characteristics of the alleged discrimination. It may well be that there is a concern where there is a multiple complexity of factors involving discrimination or the possibility of discrimination, some of which may be on grounds of the protected characteristics. Others might be much more at large. Is the Minister satisfied that the new formulation reflects the balance of those as well? As far as I am concerned, if there is discrimination it is indefensible whatever the legal wording, and I hope we are not reversing that in anything we are considering.

Vera Baird (Labour, Redcar)

Of course we are not. The hon. Gentleman is absolutely right. There are two specific examples where it has been suggested that the measure might change the meaning. Let me deal with those in a moment. I also add that there will be some guidance and a rolling programme of training on the Bill in general to make that point for county court and employment tribunal judges.

The first of the two specific issues that were raised is whether “because of”, unlike “on the grounds of”, may imply the need for intent—that is the concern of Conservative Members. The answer is no: “on the grounds of” and “because of” are both indicative of causation, but they do not imply required consent. It is perfectly possible to characterise direct discrimination as being because of a protected characteristic. The courts will be able to reject the suggestion that because the word has changed, the meaning has too, as I have just explained through the mouth of Lord Woolf.

The other express concern is that, to be discriminatory, treatment does not have to be based only on discrimination—it could happen a number of reasons of which discrimination is one. Would changing “on the grounds of” to “because of” mean that the discrimination need be the only ground for less favourable treatment? Again, the answer is no, because they are totally synonymous and there is no change in the nature of the essential question of why a person claiming direct discrimination was treated in the way that he or she was.

The Bill is more modern and exactly as Lord Woolf decided. Its style is crisper and more contemporary than that of more ancient law. It is good to change and keep up. When a new Equality Bill is introduced to help people with their rights at work or when they feel that they are being discriminated against, they want to be able to look at one page for the technical stuff and the other page for the explanation. That is why we have put in the plain English: to encourage people to look at it. There is no point in passing the Bill, after a long Committee stage, if it just hangs around on the shelf and is only brought out by lawyers to rebut discrimination. The point of the Bill is to change the culture and to move forward the whole cause of equality. As we shall discuss presently, it will require public authorities to drive the equalities agenda through their policies. We want it to be as accessible as possible, and this is just a small example of how we can do that. I assure the Committee that it will not be to the detriment of anyone’s rights.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am grateful for the opportunity to respond to the Minister’s dictionary definition, particularly given that she used my name in reference to it. She read out the definition of “because of”. It had three parts, one of which was “by reason of” and another “on the grounds of”. It does not necessarily follow that because a new word includes another formulation that it is synonymous with that formulation. It could include it, but go further. Regardless of what the courts might determine, people reading the Bill might think that “by reason of” is different from “on the grounds of”. “Reason” implies a cognitive action, and that might cover intent, which the Minister is keen to avoid. I do not think that she has made the case that “because of” is synonymous with “on the grounds of” by reason of that dictionary definition. I do not think that the Government will find it easy to defend their position, well intentioned though it might be, during the Bill’s progress, including in another place, because of that problem—and on the grounds of that problem.

Vera Baird (Labour, Redcar)

I want to make it very clear that those three are synonyms. It is not about one including the two; it is about all three meaning the same.

Mark Harper (Conservative, Forest of Dean)

I listened very carefully to the Minister’s comments and to the intervention of the hon. Member for Oxford, West and Abingdon. It is perfectly sensible for the explanatory notes to explain the legal terminology in plain English. I do not know how many Committee members have ploughed through both parts of the Bill, but, to be perfectly frank, the words “crisp” and “contemporary” did not leap out at me as I went through the 200 or so clauses. It is a perfectly good Bill, but crisp and contemporary it is not. It uses much language, such as “protected characteristic”, that one does not generally hear down the pub. Unless, of course, the Solicitor-General’s local pubs are different from those in the Forest of Dean.

Vera Baird (Labour, Redcar)

Probably not.

Mark Harper (Conservative, Forest of Dean)

We have some wonderful pubs in the Forest of Dean, and the hon. and learned Lady is always welcome to come and sample them to boost our tourism industry. [Interruption.] I acknowledge her reciprocal invitation. I am not convinced by the Minister’s argument, however, which I do not think was a very good one, so I would like to test the Committee’s opinion.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 130, in clause 13, page 9, line 5, leave out ‘a’ and insert ‘one or more than one’.

Ann Winterton (Conservative, Congleton)

With this it will be convenient to discuss amendment 131, in clause 24, page 17, line 18, leave out ‘a’ and insert ‘one or more than one’.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

The amendment would permit a claim of direct discrimination and harassment for multiple forms of discrimination. I know that the Government are consulting on the matter but, interestingly, the consultation document prompts this question: on what principle of justice or fairness should new legislation aimed at fairness deliberately exclude protection against discrimination based on a combination of two or more characteristics, discrimination against which are individually prohibited, because it would be burdensome to business? The key is that justice is not about whether business finds something burdensome to act equitably. The purpose of the measure must be justice.

The business community has concerns about the increase in litigation, because there could be multiple bites of the discrimination cherry. It is concerned that that would increase settlement costs and that it would be cheaper to settle than to go to court. Under the Bill, cases of direct discrimination and harassment on multiple forms of discrimination are not outlawed, but we think they ought to be, and the Government are consulting on the issue. However, all organisations seem to think that such a measure is necessary, so I do not understand the need to consult again.

My reading of the situation is that the Government believe that combining two protective characteristics would be adequate, because it would cover most claims, but that might result in permitting combinations of more protective characteristics. In response to the “Discrimination Law Review” consultation, public concern that the current law does not adequately protect those who experience multiple discrimination was identified. I am sure the Minister can think of many such examples.

If we amended the wording from “a” to

“one or more than one”,

a claimant would be able to bring the appropriate claim for discrimination on more than one ground, and on any number of grounds that were deemed appropriate. We need to give voice to that now, because we do not believe that we need to wait for consultation. There has already been two years’ consultation on this.

Mark Harper (Conservative, Forest of Dean)

I shall be very brief. Having listened to the evidence, I believe that the hon. Lady is slightly wrong in the way in which she characterises what the Government have done. I read their written statement and their consultation document. They acknowledged that a great deal of the feedback to the “Discrimination Law Review” said that there should be a multiple discrimination provision, as the hon. Lady says. That is why they made a proposal enabling claims that combine two protected characteristics in the consultation document. I read both the written statement and the discussion document that the Government published in April and thought that they made a great deal of sense. We will obviously look carefully at the specific legislative proposals that the Government introduce.

During the evidence-taking session, there was a discussion about whether combining two characteristics made sense, or whether more were needed. There was general agreement that it should be possible to combine two, but there was not much evidence of cases where two would not enable the protection. There did not seem to be much evidence to support having more than two characteristics, given the complexity involved and the benefits that would be derived.

Given the fact that the law should be based on dealing with real, identified problems, the proposal to bring in multiple discrimination on two protected characteristics seems to be the right one. If, in future cases, there are many situations involving more grounds, which the Government’s proposal would not solve, the matter could be looked at again. From the evidence that we heard in Committee, the Government’s approach seems sensible. The hon. Lady’s amendment would insert “more than one”, implying that all the protected characteristics could be brought together, and regrettably, we are not able to support it.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the hon. Gentleman for those remarks. This is a question of striking the right balance. I believe that the law would not become more complex because that complexity is already there as a consequence of the existence of the strands. Intersectional cases would become less complex, because the law would sit more naturally and suit the facts. Again, the fact that something is more complex or burdensome should not be the guiding line as to how many strands, protective characteristics or multiple discriminations are allowable. However, I take the hon. Gentleman’s point.

Mark Harper (Conservative, Forest of Dean)

That is important, because the Bill is not just about what the law says, but about what happens in reality. Part of the benefit of bringing different pieces of discrimination law together in a more straightforward Bill, is that protection will not be offered only by the law. The reality on the ground will be that all those organisations that have to behave in accordance with the law—such as those providing goods or services, or employers—will find it easy to understand. The problem with making something complex, particularly if it is disproportionate to the wrong that we are trying to solve, is that in making it more complex, it becomes more difficult. There might be a purer basis in law, which we would all be happy with, but in practice, it might more difficult to deliver the rights and protections that are so important for the people we are trying to look after.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I suspect that the Government are not going to accept the amendment, and I will withdraw it after the Minister has responded. We need to work on that balance. [Interruption.] Sorry?

Vera Baird (Labour, Redcar)

Why not withdraw it now?

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I would like to hear what the Minister has to say in response.

Vera Baird (Labour, Redcar)

The amendment would have the effect of allowing claims of direct discrimination and harassment to combine in an unlimited number of any or all protected characteristics. The great mathematicians advising me have worked out that covering all the possible combinations would give 511 possible combinations of action, which not surprisingly, is rather a worry for business. It would be highly complex, most people would find it excessively burdensome, and it would leave individuals wondering where and how on earth they could exercise their rights in the face of such a lot of possible combinations.

We recently published a document. There was a good deal of discussion in the earlier review, as the hon. Member for Forest of Dean has said, and the intention of the new document, “Equality Bill: Assessing the impact of a multiple discrimination provision” was exactly as expressed in its title. A clause in the document limits it to two grounds. The point was to ask a specific question of a particular business and other interested parties about what the impact of the clause on that limited number of grounds would be, so as to provide a some clear understanding about the l scope of the measure.

In short, the hon. Lady’s proposal would be unduly complex and excessively burdensome and, since she has let the cat out of the bag by saying that she is going to withdraw it, I shall not add any more detail. However, our discussion document closed for responses last Friday. We are looking at the feedback we have received and, once we have done so, we will make a decision about whether protection from multiple discrimination, as set out in our document, can be effective, workable and proportionate. If it can, we will introduce it.

Mark Harper (Conservative, Forest of Dean)

On timing, will the Minister confirm whether it is subject to the question of how long it takes to go through those responses? Do the Government intend to table an amendment to the Bill on Report in the Commons, or wait until it goes to the other place? On a procedural point, I think it would be better to allow the elected House to consider it first, if that is possible within the timing.

Vera Baird (Labour, Redcar)

Yes, it is our ambition to do it here—ideally while the Committee is still sitting. I am not sure whether we will manage that or not, but we want to do it here if it is to be done.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I listened carefully to the Minister and thank her for her response. Regardless of whether or not I withdraw the amendment, it is important to have her thoughts on the matter on the record. It is a matter of judgment and I accept the Minister’s view that the best way forward is to look at the combination of two of the strands. I also welcome the fact that the Commons, rather than the Lords, will be able to scrutinise the measure so, for now, I beg to ask leave to withdraw the amendment.

John Penrose (Conservative, Weston-Super-Mare)

I beg to move amendment 194, in clause 13, page 9, line 6, at end insert—

‘(1A) Discrimination does not include marketing or promoting activities targeted at a particular group of people whether or not they share a protected characteristic.’.

It is a pleasure to have my first opportunity to make a contribution under your chairwomanship, Lady Winterton.

Ann Winterton (Conservative, Congleton)

Chairmanship.

John Penrose (Conservative, Weston-Super-Mare)

I stand corrected. Amendment 194 states that discrimination does not include marketing or promoting activities targeted at a particular group of people, whether or not they share a protected characteristic. It is tabled primarily to elicit some reassurance from the Minister that routine, perfectly normal and perfectly lawful business activities will remain as such.

I am sure the Minister is well aware that it is standard business practice to segment markets, and to target particular groups on the basis of sound business principles. I hope that she will reassure us that that can continue and that there will be no question, in the future, of subjecting businesses’ marketing plans to rigorous legal scrutiny. They have not required that scrutiny in the past.

There are two issues: one is market targeting, the other is limiting access to a product or service. The second one is different and is deliberately not part of the amendment—that is something for separate discussion later. There are, however, many companies whose business models could be cast into doubt if we do not clarify this proposal. There could be all sorts of dangerous and worrying implications if we do not nail this down.

Tim Boswell (Conservative, Daventry)

Does my hon. Friend agree that one of the difficulties is that any discrimination likely to be alleged will probably be indirect? For instance, a marketing programme might not necessarily be expressed as only for the over-70s, or whatever, but in practice it might well add up to that as a result of careful market segmentation. People would then say, “Ah, this is discrimination.”

John Penrose (Conservative, Weston-Super-Mare)

My hon. Friend has summed it up neatly—we tabled the amendment for that reason, and to give the Minister a chance to allay any fears among investors, management and staff in many companies up and down the country. There are many examples. We have heard evidence and submissions from companies such as Saga, which specialises in marketing to, and providing holidays for, people above a certain age. Club 18-30 self-evidently targets its products at the other age range, and Sheilas’ Wheels markets insurance to women drivers, as well as a series of other people. Those companies have particular market aims and are targeting their advertising at certain segments of the market. I am not sure, but it is entirely possible there are holiday companies which market their products and aim their promotional activities at Muslims wishing to go on the Hajj. Those companies would be legitimate and we would not want to stop them. In my constituency of Weston-super-Mare, there is a hotel which specialises in holidays and respite for disabled people and their carers. Clearly, everybody would want that to be perfectly legitimate and allowable in future.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

This is not an area I am particularly familiar with. If a golf club wanted to attract members, but only gave incentives or direct marketing to white people, would that cross the line in any way?

John Penrose (Conservative, Weston-Super-Mare)

I am hoping the Minister will sketch out where she thinks the Bill already does this and provide some guidance as to what is allowable, what will continue to be allowable, and where the Bill draws the line. That is why we have tabled the amendment. I am hoping it is straightforward for the Minister to give us comfort and reassurance, but it is important that we get this on the record at an early stage in the Bill’s passage so that investors, management and staff in any affected business can be reassured in future.

Vera Baird (Labour, Redcar)

Service providers want to maximise business, and depending on the nature of it, that will entail legitimate targeting of campaigns at certain groups. Like the businesses that have been quoted, another example is a company that specialises in selling make-up tailored to black women. They should be perfectly entitled to target that audience by, for instance, advertising in the black press or using photographs of black models. The car insurance company which was quoted is an example that I would have used too.

It would be where an advert discriminates against a person with a protected characteristic that it would be unlawful. If the make-up advert denigrated white women, or the car insurance advert indicated that lesbians need not apply, such marketing would fall foul of the existing legislation and of the Bill. Of course, the EHRC would take action in such a case.

Technically speaking, marketing and promotion is not a service so it is not within the Bill’s scope, unless it is discriminatory in the way I have described. People receive flyers and read adverts before they use the service. It is only at the point of the customer’s engagement with the service provider that it complies with part 3 of the Bill.

John Penrose (Conservative, Weston-Super-Mare)

Does the Minister accept that many companies specialise within the marketing, advertising and promotional world, advising those who produce the ads and promotional activities she is describing? If they are participating in creating those promotional vehicles, might they none the less be captured in that way?

Vera Baird (Labour, Redcar)

I do not know about that. The real point is that if any marketing or promotion is discriminatory, it would be in the scope of the Bill. It is discrimination so would come in as such. However, the Bill deals with goods, facilities and services; advertising is not within that definition. It is worth noting that the stakeholders he alluded to—representing financial services and the age interest—have concluded readily that marketing to specific age groups is no problem. They are not asking for any change from this legislation.

Tim Boswell (Conservative, Daventry)

Perhaps the Solicitor-General could help on the concern which built up in my mind as she answered. It is about the nature of the campaign itself, picking up the point that the hon. Member for Hornsey and Wood Green made. Suppose somebody—it might be for the best of motives, or it might not—produces a campaign that is presented as a general marketing campaign but uses models who are all white. I am not talking about two or three, but about a large population. One might reasonably assume that something is going on; they are either totally culturally unaware, or they are wilfully trying to misrepresent the population. Is that activity discriminatory by itself? If so, with whom, as no service is being provided, and what action can be taken about it?

Vera Baird (Labour, Redcar)

In so far as it was discriminatory, it would be discriminatory not so much for being targeted at a group but for excluding a group. If it excluded or denigrated a group as it went along praising its target group, that would be discrimination in the ordinary way, and all the provisions that we are used to would fall into place exactly as they would with any other kind of discrimination. There is adequate protection. Targeting is not a problem as such, so there is no need for the amendment. I therefore invite the hon. Member for Weston-super-Mare to withdraw it.

John Penrose (Conservative, Weston-Super-Mare)

I think I understand the Minister to have said—I will play it back to her to ensure that we have got it absolutely clearly—that provided that promotional or marketing activities are done constructively and positively to emphasise the benefits of the thing being promoted and the group to which it is being promoted, rather than running down anyone else, any company that indulges in market segmentation or targeted marketing should be on the right side of the law. If that is the case and I have understood it correctly—I think that I saw the Minister nodding just now—

Vera Baird (Labour, Redcar)

I am just waiting for inspiration.

John Penrose (Conservative, Weston-Super-Mare)

Perhaps I should talk slowly until inspiration arrives, in the shape of bits of paper from her advisers. If I have understood it correctly, we would be willing to accept it. I am, however, hopeful that the Minister will be able to confirm that before I can say genuinely that I am willing to withdraw the amendment.

Tim Boswell (Conservative, Daventry)

Will my hon. Friend give way?

John Penrose (Conservative, Weston-Super-Mare)

I would be delighted to.

Tim Boswell (Conservative, Daventry)

I sensed that my hon. Friend might require some assistance. While this is going on, will he consider also—I am still not wholly satisfied by the Solicitor-General’s response—that when I described certain conditions that involved a marketing campaign and not the provision of a good or service, she said firmly that if it excluded a group of the population maliciously or, as I suggested, due to a lack of cultural awareness, it would somehow be covered by discrimination? However, if it is not directly part of the provision of goods or services, how could it be? Will he reflect on that, and perhaps reflect my concerns to her?

John Penrose (Conservative, Weston-Super-Mare)

I thank my hon. Friend. I see that inspiration appears to have struck the Minister; at least, a piece of paper has been passed to her. If she is willing to reply to us, that would be helpful.

Vera Baird (Labour, Redcar)

I hope that the hon. Gentleman noticed how indirectly the paper was sent to me. In a nutshell, targeting is fine as long as it does not exclude or disadvantage people. I hope that that is clear enough.

John Penrose (Conservative, Weston-Super-Mare)

I thank the Minister for that. That implies an approach in the Bill similar to that taken elsewhere to positive action. It is okay to target particular groups of people in a positive way, but denigrating them or running them down is not. On that basis, and having had that clear instruction and reaction from the Minister, I beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 222, in clause 13, page 9, line 6, at end insert—

‘(1A) This section applies to a person (B) who is perceived by A to have a protected characteristic, regardless of whether B does in fact have that characteristic.

(1B) This section applies to a person (B) who has an association with a person who has a protected characteristic.’.

Mark Harper (Conservative, Forest of Dean)

I shall be brief. We touched on perceived disability and discrimination by association when debating some of the amendments that I tabled on clause 6 and, in that case, the Minister’s explanation was satisfactory, so I asked leave to withdraw them.

The hon. Member for Oxford, West and Abingdon makes some good points. Both the Minister’s explanation and the explanatory note say that the wording in the Bill is clear enough and that it covers what the hon. Gentleman mentioned, but state some concerns that are shared widely. I will listen with great care to the Minister’s detailed explanation about whether the wording in clause 13 adequately captures the points raised by the hon. Gentleman.

Vera Baird (Labour, Redcar)

The amendment would make it explicit that direct discrimination includes less favourable treatment of someone because of their association with somebody who has a particular protected characteristic, or because they themselves are perceived, rightly or wrongly, to have that characteristic.

The clause derives, in part, as the hon. Member for Oxford, West and Abingdon said, from Coleman v. Attridge Law in the European Court of Justice, which said that the European directive’s definition of direct discrimination implicitly includes the concept of discrimination by association. Although the clause derives from that in part—it is written with large exclamation marks around it at the moment because that is quite a recent decision—in 1975, or thereabouts, our domestic courts reached the same conclusion, which was that, under the Race Relations Act 1976, direct discrimination implicitly included discrimination by association. Our own courts have also held that the definition implicitly includes the concept of discrimination by perception in a different case in 1983.

I say that because we do not have something absolutely new and we are not putting it explicitly into the Bill, which the hon. Gentleman could have argued would have been dangerous, because something new needs to be written in large letters. I used that argument when I talked about listing the people to whom the socio-economic duty was due, saying, “It is a new duty; let us list the people that it applies to so that everyone knows who is in and who is out.” That would have been an argument had those two domestic judgments, both now more than 20 years old, not injected that interpretation into our domestic law, pointing towards the conclusion in Coleman arrived at by the European Court.

The Bill’s definition of “direct discrimination” includes those concepts. I am pretty ready to accept, honestly, that at the very first look at the clauses there is a transparency argument for making the protection explicit, as some definitions of “direct discrimination” in current legislation do. However, the reason that we have not is to widen the ambit of clause 13, being careful not to narrow it inadvertently.

Before I explain what might at the moment look like an odd concept, I shall say one more thing, which is that we want people to be able to access their rights. I have spoken about that recently, in saying that simplifying the language is an important component of encouraging people to look, and to see what they are entitled to. One might say, “Well, let us put in association and perception,” so that they can see what their rights are in those connections. For the reason that I am about to set out, it is not so wise to do that in this case as it was in the question of “because”. Also, I venture to suggest that discrimination by association or discrimination by perception are quite complex ways of expressing something anyway, and may not throw all that much light on what they are about for the lay person.

Here is the core of why we do not think that we should accept the amendment. The “because of” turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim’s association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

“Direct discrimination” has a number of forms—a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation.

The amendment is not perfect, as has been said, but it has been drafted in such a way as not to preclude the clause’s application to other forms of direct discrimination. However, there is always that lawyerly problem—I forget how many members of the Committee, as well me, are lawyers. I know that the Parliamentary Secretary, Government Equalities Office, is. The danger is that, if we name something in a section of a statute, by implication we exclude or devalue things that are not named. In a nutshell, that is the thinking behind not putting in association or perception expressly.

In the example quoted by the hon. Member for Oxford, West and Abingdon, in clause 13(4), he would say—he may be right—that discrimination by association or by perception are excluded. In a way, by analogy with the arguments that I have just launched, that is a powerful implication that association and perception are included in all other aspects of clause 13. However, because there is a change in perception and because it is so central to the world of carers that the law has now emerged and crystallised in the Bill after the Coleman case, we will promote it as strongly as we can to ensure that everyone knows their rights. Outside the ambit of making the Bill clear, the availability of the new rights needs to be made clear. People probably do not need to worry about that because Carers UK has very much got the bit between its teeth. It is pleased with these changes in the law, and it will certainly ensure that the caring community knows that it will now have these new rights. We will do everything that we can to support the ambition of making the rights transparent.

I hope that the hon. Gentleman will be content to withdraw his amendment because of, first, my clear statement that association and perception are included in the definition in clause 13 and, secondly, the danger that I have set out of naming something and excluding something else.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

May I give the Minister the opportunity to respond, if she can, to the point that I raised on subsection (4) about the explanation for that exclusion? I feel that that would be best dealt with in this group of amendments, rather than in a stand part debate. If she is able to do that now, I would be grateful, but I understand if she is not, and she may be able to come back to it in an intervention.

Vera Baird (Labour, Redcar)

I will return to that point in the clause stand part debate if we have one. However, I do not know what your view will be by the time that we get to the end of the many amendments, Lady Winterton. I will either do that now or I will write to the hon. Gentleman, but I shall let him know.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is fine. I am grateful to the Minister for giving a full explanation of the Government’s position. I accept that when there is a new provision, it is worth putting into statute. I accept that this is not a new interpretation of the law, but I believe that just because it is not new is not a reason for including it if there are other reasons. I know that that was not the main part of her case, and I am pleased that she recognised the argument for including the provision in the interests of transparency, especially since she felt strongly about the “because of” provision, where the case is somewhat less strong.

Vera Baird (Labour, Redcar)

A moment ago, the hon. Gentleman made a point about subsection (4). Association and perception discrimination have never been covered in marriage and civil partnership provisions before, because there was never any evidence of need, so we have just carried forward the existing protection to the Bill.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is useful in that narrow area, because I suspect that it will be raised by the Joint Committee on Human Rights, and it and others can reflect on that answer to see whether a case can be proposed for the exclusion. The logic is that other areas are included because there is evidence of a problem. I will not push that now, but it seems peculiar that, historically, there should have been such non-coverage, even if there was no evidence of harm, because it just sticks out. I shall have to reflect and seek advice.

Vera Baird (Labour, Redcar)

The hon. Gentleman will probably remember that I said this morning that the consultation showed almost an argument for discontinuing this protected characteristic completely, because there is so little evidence that it causes difficulty. As I understand it, there is absolutely no evidence that association and perception add to the almost non-existent difficulty that it causes. It is right at the bottom of everyone’s scale.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I accept that. I am on the record as saying that legislation should prioritise dealing with mischief, which is why I raised the issue of sexual orientation discrimination in religious organisations. It is not part of my mission to seek out areas that are not covered for the sake of it. However, I will reflect on that.

To return to the Minister’s reasoning, she was concerned that it is important to not inadvertently narrow the ambit of direct discrimination by a misplaced amendment that seeks to clarify. I understand that, although we have not seen—I am not inviting her to do so now—any direct criticism of the amendment that I have provided or such an amendment that might do that. However, I recognise that that is sometimes a good reason for not providing greater explanation within statute.

We come to the Minister’s core reason, which is the concern that including something might imply that other grounds are covered by direct discrimination. I was grateful to her for the information that she provided about the other sorts of things that are covered, such as detrimental treatment on the basis of a refusal to discriminate. The danger of including some parts of the definition might, by extension, imply that the others are not covered, and I need to reflect on what she has said about that. One could say that, if there is a good argument for including the measures in the Bill, she is still able to say and make clear that their mere inclusion does not in any way detract from existing protections covered by discrimination.

On balance, I am not persuaded that there is still a good reason to include such matters, but it is important that the organisations that I cited read the Minister’s words carefully to see whether they are persuaded by her. On that basis, I think it wise for us all to go away and reflect on what she has said. I beg to ask leave to withdraw the amendment.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I beg to move amendment 133, in clause 13, page 9, line 10, leave out subsection (3) and insert—

‘(3) If the protected characteristic is disability, nothing in this section shall be taken to prohibit more favourable treatment of a disabled person on the grounds of a disabled person’s disability.’.

Mark Harper (Conservative, Forest of Dean)

Again, I shall be very brief. I have some sympathy with the hon. Lady’s concerns. We are looking for the Minister to do two things. First, we want her to be clear about the effect of the language in the Bill. The explanatory note is clear, but we want the Bill to be clear. Secondly—this goes to part of what the DCC is talking about—will she say a word or two about the guidance either from the Department or the EHRC? We want to be clear about what will be in the Act, but the guidance should be explicit for those who have to use, implement and understand the law, and the intention behind the law should be clear. That would be helpful.

A number of amendments have been intended to make the language in the Bill clear. There are two parts to that. First, we would like the Minister to comment on the legal effect of the Bill. Secondly, we hope that the text that the EHRC produces once the Bill is enacted will be more readable. That is critical, as it will be used by the man in the street and business organisations. The Minister could well reassure the Committee on those two points.

Vera Baird (Labour, Redcar)

The amendment would make the intent of clause 13(3) clearer. Our intention is to import into the Bill directly the asymmetric nature of the protection that Disability Discrimination Act 1995 gives to disabled people. That has always been our intention; it continues to be our intention, and there is no regression.

As has been pointed out, we say in the explanatory notes that

“it is not discrimination to treat a disabled person more favourably than a person who is not disabled”.

That could not be clearer or more unambiguous. However, clause 13(3) could be clearer and less ambiguous, and we do not think that we have achieved the same transparency in drafting the clause as we have attained in the explanatory notes.

We heard from the disability charities in the evidence-taking sessions. They were worried that the clause was not clear enough. There is absolutely no disagreement about what we are doing in Committee, so we would like to invite the hon. Lady to withdraw the amendment on the clear understanding that we are talking to the disability charities with every intention of attempting to clarify clause 13(3) in some better way. We have a target of doing so on Report if possible.

Lynne Featherstone (Liberal Democrat, Hornsey and Wood Green)

I thank the Minister for that very helpful response and clear commitment to what we all intend for this part of the Bill, and I am delighted that she will be working with the DCC to find a clear wording. On that basis, I am more than happy to beg to ask leave to withdraw the amendment.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 221, in clause 13, page 9, line 20, at end insert—

‘(5A) If the protected characteristic is religion or belief, for the purposes of this section, a claim for direct discrimination on that protected ground can not solely rely on A treating B less favourably on the basis of a manifestation of B’s religion or belief.’.

The rest of the debate is in Hansard.