Equality Bill [HL]

I believe I understand the noble Lord’s difficulty. Perhaps I should go through the areas where we agree and try to explain some of the issues at this stage. I should say to the noble Lord immediately that there may be a few areas where we can look again at the wording. This is not because I am convinced that we will find any better wording but because there is something here that we need to consider. If I understand the intention behind Amendments Nos. 170 and 173 correctly, it is to allow the courts to take into account the religion or belief of the person who has discriminated when deciding on cases involving discrimination and harassment. I now understand that the noble Lord is particularly concerned in relation to Clause 46(2) and how it could be used in cross-examination. Let me emphasise the areas where we do agree. I agree with the noble Lord that otherwise his Amendments Nos. 170 and 173 would appear to be at odds with the key principle of discrimination law—namely, that the position of the person discriminating is immaterial—which, of course, is what the noble Lord says is stated in Clause 46(1). For example, as the noble Lord has made clear, it does not matter if a woman is discriminated against by a man or a woman; it does not matter whether a Chinese person is discriminated against by a Somali or a Welsh person; it does not matter if discrimination on the grounds of sexual orientation is shown by a person of the same sexual orientation. In all these cases, what matters is that the person has been discriminated against. I believe we are at one on that issue. The reason for the amendments, therefore, seems to be to ensure that the person’s own religious or other beliefs cannot be used as a justification for discrimination or harassment on the grounds of religion and belief. If that is partly what the noble Lord seeks, I understand and sympathise with the intention behind the amendments. I should like to take the opportunity to place on record that it is neither the intention nor the effect of the clauses as currently drafted to allow discrimination or harassment in such cases. Clauses 46(2)(a) and 47(2)(a) would cover where a person discriminates against or harasses any person contrary to a clause in Part 2 because that individual does not share his beliefs. This would include situations where both people expressed different beliefs within the same religion, as the noble Lord has indicated. So an Orthodox Jew providing a good facility or service could not lawfully discriminate against or harass another more secular Jew on the grounds that he was not religious enough. I understand the complexity of the matter and I know that the noble Lord wishes to get it right. From everything that he has said I take the view that he wants to do exactly what we want to do, save that he is not sure that the wording will achieve what we both aspire to achieve. We believe it does, but I am very happy to take it away, look at it further and ensure that we are as confident as we can be that the matters that should be covered are covered. As to Amendment No. 172, the wording we have used in the provision—which reflects the wording of religion and belief regulations and other regulations implementing the employment directive—is taken directly from the employment directive itself. The wording of the race directive is the same. It seemed right to us, particularly in this sensitive area, to rely on the courts to develop the concept in line with EC law and not risk embodying in this legislation constraints which might conflict with that. The concept of dignity is, as the noble Lord says, wide, but it also has a vital depth. It is recognised widely as significant; it does not refer to trivial slights or minor rudeness but to something much more basic, and we wish to protect that. I hope that I am right in thinking that there is not much distance in the intention between ourselves and the noble Lord in that respect, although we may disagree about the wording and its effect. It is not our intention that harassment could be successfully claimed over trivial matters, and we do not think that our current wording has that effect. As I say, it reproduces existing legislation. If we have misunderstood the noble Lord’s concerns on the matter, we will of course be happy to continue to listen. We think that the amendments are not merited but I will look at this before Report and hope that we will either be able to satisfy ourselves that the wording is fit for purpose or to come up with wording which may better express our joint intention.