---

Equality Bill [HL]

moved Amendment No. 120: Leave out Clause 47. The noble Lord said: My Lords, I share all the concerns that have been expressed. My task is to try to explain what is not yet clear. Some questions of fact need to be borne in mind when we examine the issue. My bottom line is that I hope the Government will ultimately decide to take this away to the Discrimination Law Review where it can be properly considered. That seems to be a sensible, practical outcome. The first point I draw to the attention of the House is that the Bill is rightly forbidding direct and indirect religious discrimination in education and housing and by public authorities. Therefore, the starting point is that we are already creating civil rights and civil wrongs to deal with direct and indirect religious discrimination in the three areas where the new tort of harassment is contemplated. So nothing I am about to say in any way undermines the need to tackle religious discrimination in those areas. Secondly, Clause 48 deals with goods, facilities and services. The Home Office, in its wisdom, has decided to exclude harassment from all goods, facilities and services provided to the public. Why, if there is to be a tort of harassment, should it not apply to an hotel or boarding house, or to anyone providing goods, facilities or services to the public? The answer is that the Home Office rightly and sensibly saw the awesome implications of creating a new civil right and civil wrong that would allow an individual victim to sue for the tort of religious harassment in all the situations covered by Clause 48. It was not worried only by the free-speech implications of dealing with booksellers; it simply knocked the whole of Clause 48 in the context of harassment into fairly long grass by saying, ““That will all be dealt with by the Discrimination Law Review””. The first important question to bear in mind is: why on earth has the Home Office not adopted the same sensible approach to the tort of religious harassment in the context of housing—there are very sensitive relationships between someone who manages a block of flats and the tenants—or of education—there are very sensitive relationships between those who run schools and the pupils—or of public authorities, including faith groups, charities and so on? I have received no coherent answer to that question—no answer at all—except that it is to secure consistency. I must therefore explain why it does not secure consistency. I am grateful to the Minister and her advisers for having met me to discuss these matters not once but twice. I am sorry to tax the patience of the House, but I need to give this explanation because someone must put on record why Clause 47 should be deleted at this stage and reconsidered. I apologise and I promise that it is the only long speech I shall make. I asked a Question of the Minister and on 10 October she gave a Written Answer in which she stated that the Home Office is,"““unaware of what legislation other EU or Commonwealth countries are implementing to tackle religious discrimination and harassment””.—[Official Report, 10/10/05; col. WA70.]" I found that a little surprising, because the Government have to decide how best to give effect to EU equality directives, including the concept of harassment on religious grounds. One might have supposed that it was relevant for the Home Office to ask itself how other member states had done that. I am not aware of any state of the European Union, or of the Commonwealth, which has applied the concept of the tort of harassment certainly in this kind of area. The Government should inform themselves about what is happening in other jurisdictions. It is important then to tell your Lordships that the tort of religious harassment in housing, education and public authorities is not required by European Union law. The EU directives expressly state that the concept of harassment in the areas they cover can be defined in accordance with national laws and practices of the member states. But Her Majesty’s Government have not done that. In areas where EU law applies, they have simply copied in the undefined definition of the tort of harassment. The regulations giving effect to EU law have not given, as they could have done, a more concrete definition in accordance with British national law and practice. They have simply, like Clause 47, repeated the formula in the EU directives without definition. The next point is a little legalistic. In the case of Omega, the watch company, before the European Court of Justice, the Advocate General explained in her opinion why the concept of human dignity, which underlies all fundamental human rights, needs to be given concrete meaning and definition if it is to found legal rights and obligations. She said, about a case prohibiting games simulating acts of murder with submachine gun-type laser targeting devices, that,"““there is hardly any principle more difficult to fathom in law than that of human dignity””." She observed that both in international law and national legal systems, human dignity appears primarily as a general article of faith or as a fundamental or constitutional principle, not as an independent justiciable rule of law. This is because it is a generic concept with no traditional legal definition or interpretation. It does not have concrete substantive form. For that reason, speaking for myself, it cannot form the basis of an independent tort of harassment as it does in Clause 47. Furthermore, our British courts have declined to give the concept of human dignity any precise definition, although references to the term have increased since the Human Rights Act came into force. I repeat that the inclusion of this tort in this part of the Bill is not required by European law. In addition, there is no requirement to include it for reasons of consistency. On the contrary, the Home Office has already excluded it for the provision of goods, facilities and services to the public, even though the Race Relations Act 1976 applies it to goods, facilities and services across the board. So there is no consistency of argument about copying in, as the Minister puts it, for Jews and Sikhs the same for other groups. That is completely inappropriate. What she calls the references to Jews and Sikhs is the Race Relations Act, which applies to any ethnic discrimination. It includes harassment, but it has not been copied in for goods, facilities and services. There has been no explanation of the need to include the tort of harassment in the sensitive relations about which I have spoken. I submit that, given the undefined nature of what constitutes religion or belief, of what constitutes violating human dignity or of what constitutes ““offensive environment””—not merely an intimidating one—in Clause 47(1); and given that there is no filter, no Attorney General, between the claimant and the defendant in proceedings brought under Clause 67, the inclusion of this tort would encourage divisions between different religious groups and different belief groups. Such litigation would not be in the public interest. A complainant could bring proceedings under Clause 67 claiming that her human dignity had been violated or that the defendant had created an offensive environment. For example, the owner of a block of flats, who is a believer in the well known evangelical Jews for Jesus movement and believes that Jews would be well advised to become Christians, and who does not discriminate against Jewish tenants and treats them totally equally, puts up a ““Jews for Jesus”” poster recommending that they do the sensible thing and turn to the other Abrahamic faith. The Minister agrees with those who said that that would be a tort, as he is doing it deliberately because of the Jewish tenants’ religion, although there is no question of effect. I find it wholly unacceptable that the owner of the flats should be subject to a tort action. The same applies to a hotel or boarding-house, but, for unfathomable reasons, these are not covered, because they are under goods, services and facilities. I am almost coming to the end. The next point is that the Protection from Harassment Act 1997, which has already been mentioned, contains a general tort of harassment that is neutral, and could be used to deal with cases of religious harassment, if needed. That tort is available to deal with harassment that is not only religiously motivated but which is homophobic, or simply motivated by ill will. I do not understand why that tort would not be completely sufficient in this area. The inclusion of religious harassment in Part 2 is unacceptably vague. The tort sweeps too broadly, and threatens to be applied in a way that breaches the Convention rights of freedoms of others. It has been included arbitrarily, applying to housing and education but not to goods, services and facilities. The real mystery is that religious discrimination is already well protected under Part 2, and this is wholly unnecessary. All these points should be considered by the discrimination law review, and should certainly not be the subject of a tort that this House approves. Therefore, although I will not press the amendment to a Division today, I give notice that, unless we get rid of it before Third Reading, I will want to come back to it then. I beg to move.