Equality Bill [HL]

moved Amendment No. 170:"Page 25, line 31, leave out paragraph (a)." The noble Lord said: I want to do this in an intelligible way. The grouping is such that it deals with two topics, which I need to unpack so that even I can understand what I am talking about. Amendment No. 170 focuses on the provision dealing with discrimination in Clause 46. Clause 46(1) defines as unlawful discrimination which is,"““on grounds of religion or belief””." Clause 46(2) has an exception clause, which states that in Clause 46(1),"““the reference to religion or belief is a reference to—""(a) a religion or belief of B or of any other person except A, and""(b) a religion or belief to which B or any other person except A is thought to belong or subscribe””." Amendment No. 170 concerns the following example. Let us suppose that a member of the liberal wing of the Jewish faith eats pork and a member of the orthodox wing of the Jewish faith strongly objects to any Jew or religious Jew eating pork. They are both members of the same religion—this is entirely hypothetical, which I am trying to explain with an example—but perhaps the orthodox Jew is a bigot who decides to discriminate against or to harass the less orthodox or unorthodox Jew for eating pork. The problem is whether the exception in Clause 46(2)(a) prevents the liberal Jew being protected against discrimination or harassment because the discriminator has the same religion as the alleged victim. This is where the matter gets complicated and I apologise for having to take it slowly so that I follow my argument. The problem is that normally in discrimination law the position of the discriminator vis-à-vis the victim does not matter. In other words, if I, or a woman, discriminate against a woman, the gender of the discriminator is irrelevant. If a victim is the victim of sex discrimination, the fact that the discriminator is of the same sex does not matter. The same is true of racial discrimination. It does not matter whether the perpetrator of race discrimination is of the same colour or ethnicity as the victim: if a black person discriminates against another black person because of the other person’s ethnicity that would be unlawful. However, the Government have taken a different view on religion. In this provision they say that my example of the liberal and orthodox Jew is covered because the liberal Jew would be discriminated against on the basis of religion or belief as provided for in Clause 46(1). I know that the Government do not mean to do this and I am moving the amendment in order to press them to think harder about how to get it right. But the problem is that in most discrimination cases, the views and beliefs of the alleged discriminator are highly relevant in determining whether the reason for the less favourable treatment is forbidden ground, such as race or gender, or some other reason. If I am a publican and I refuse to serve a drink to a black person, but I say that I did not do so because he was not wearing a tie, the case is all about whether the true reason is because the person was not wearing a tie or because he was black. If I appear for the alleged victim, I will cross-examine the publican about his views. I would ask, ““Is it not right, Mr Snodgrass, that you have expressed strongly racist views and made unpleasant remarks to your guests in the past? Does that not reveal that the true reason why you objected to serving the alleged victim was because of his colour?””. So the views and beliefs of the discriminator are highly relevant in deciding whether the difference of treatment being complained of is a forbidden ground or something else. However, given how this paragraph is worded, unless the courts rewrite it—I am not in favour of asking courts to rewrite words that we can get right ourselves; not only because of the expense and delay, but also because the citizen is entitled to a statute which on its face says what should be said—I am worried that the liberal Jew in my hypothetical example would be met with the defence that he is of the same religion or belief as the alleged discriminator and therefore is taken out of the remit of Clause 46(1). That covers the first part of my concerns. The other amendments in the group deal with a quite different concern: that of the lack of definition of harassment. Clause 47(1) outlines a different kind of civil wrong, this time addressing not discrimination, but quite rightly turning to harassment. It states that,"““a person  . . . harasses another  . . . if on the grounds of religion or belief A does anything which has the purpose or effect of . . . violating B’s dignity””." I am not worried about paragraph (b), which refers to,"““creating an intimidating, hostile, degrading, humiliating or offensive environment””," because we can all understand those. But what is meant by ““violating B’s dignity””? It worries me because it is such a broad concept that it is capable of covering an enormous range of conduct which few sensible people would think should be covered. I know that the word ““dignity”” is rooted in international human rights law, European Union law and so forth, and I know that it is not defined. But in European human rights law, the concept of ““dignity”” normally relates inhuman or degrading treatment and punishment—that form of violation of one’s dignity; or violating one’s private life, which is another form of indignity. So my amendment seeks to give some kind of content to the word ““dignity”” in order to narrow it. Why does that matter? I want to narrow the concept—but not necessarily to my words because they may not be broad enough—to give it some definition and something that one can hang on to, in order that the exceptions to which I will come later are not over-broad. I hope that I have not bored the Committee stiff by trying to explain this. It is a very complicated subject but it is important that we should unpack these issues at this stage in order that we can all reflect further in the light of the Minister’s response. I apologise for having taken so long. I beg to move.