Equality Bill [HL]

My Lords, first, I make it clear that in speaking to this amendment I am speaking to the entire group of amendments. I am sure noble Lords will be relieved to hear that I shall make just one speech. Secondly, what I am about to say shows no lack of support for Part 2 in relation to religious discrimination. I have no difficulty about those provisions, which are very important and which we support. Thirdly, my object is to persuade the Minister and, for that matter, the noble Baroness, Lady Miller of Hendon, that the right thing to do is to remove this clause from the Bill and get it sent to the Discrimination Law Review so that it can be considered in the light of everything else and then it can come back and we can have a provision of which we can be proud. Having said that, we have previously explained our strong objections to the way in which a broad and ill-defined tort of religious harassment has been included in the Home Office part of the Bill, creating a real risk of legal proceedings by the intolerant or the thin-skinned will be brought in the sensitive areas of housing, education or public services. I am not going to repeat them. We proposed that the complex issues surrounding this controversial tort should be removed and reconsidered by the Discrimination Law Review, and the Minister appeared to be sympathetic to that suggestion. However, as the noble Baroness, Lady Miller, mentioned, on 2 November the noble Baroness, Lady Scotland, sent me the Home Office’s reasons for insisting on retaining religious harassment in Part 2, rather than referring it to the Discrimination Law Review. I am sorry to have to say that it is clear from her letter—this is a bit hard, but it is true—that the Home Office still does not understand the most basic principles of discrimination law. I am delighted to see the noble and learned Lord, Lord Slynn of Hadley, in his place because I am going to refer to one of his judgments. The letter correctly states that Jews are covered by the Bill as an ethnic group but states that ““part of designating them”” as an ethnic group is ““that they have a shared religion””. It is not clear to whom the Home Office refers as ““designating”” Jews as an ethnic group. It is not for it to do so. In any case, it is not true. The letter also asserts that the Race Relations Act protects Jews,"““from religious as well as ethnic discrimination and harassment””." I have heard similar views expressed by the Muslim Council of Britain. They are without foundation, and it is a matter of concern that they are given credence by the department responsible for the operation of the Race Relations Act. It has been clearly established for a quarter of a century, since the decision of Mr Justice Slynn, as president of the Employment Appeal Tribunal, in 1980 in the case of Seide v Gillette Industries Ltd, which the noble and learned Lord may remember, that Jews are included within the Race Relations Act only as victims of racial, and not religious, discrimination. That decision was followed in the case of Tower Hamlets London Borough Council v Rabin in 1989 and was relied on in the House of Lords case Mandla in 1983. It was also shown in the New Zealand Court of Appeal case called King-Ansell. Jews are protected under the Race Relations Act not because they have a shared religion but because of their shared ethnicity, whether real or as perceived by anti-Semitic discriminators. Exactly the same protection applies to Muslims—I am sorry there is no Muslim Peer here today—who are protected if they have an ethnic identity as well as a religious one; for example, because of their colour or national origins. The typical anti-Semite who persecutes Jews does not usually do so because of their religion but because of what he regards as their tainted ancestry and their blood. The Nazis murdered anyone with Jewish ancestry irrespective of their religious beliefs. It is profoundly dispiriting to encounter such misunderstanding of anti-Semitism and of discrimination law and it is offensive to the memory of millions of Jews slaughtered in pogroms and in Nazi extermination camps. Jews were persecuted and exterminated on the Continent because of their actual or presumed Jewish identity or origin. They were not spared because they were atheists or agnostics. It has even been suggested by the Minister that Jews may be removed from the protection of the Race Relations Act altogether and given protection only on religious grounds. I cannot believe that she would really do that because that would be a regressive step that would not only breach the UK’s obligations under the European convention, the international covenant and the CERD, but it would also be deeply offensive to the victims of the Shoah and to the entire Jewish community. When the first Race Relations Act was enacted in 1965, with Sir Frank Soskice at the Home Office, it was done in part to combat an increase in racial anti-Semitism. It would be outrageous to withdraw that protection because Muslims as such are not a racial group. I hope that we shall not hear that suggestion again. The true position may be summed up in this way. There is religious anti-Semitism and there is racial anti-Semitism. Before the 19th century, anti-Semitism was primarily religious in nature, based on Christian or Islamic interpretations of Judaism. That form of prejudice and discrimination is directed at the religion itself and so usually does not affect those of Jewish ancestry who have converted to another religion. That form of anti-Semitism is covered by the religious discrimination provisions in this Bill, just as religious Islamophobia is covered. Racial anti-Semitism is a kind of xenophobia rooted in ideas of race. Racial anti-Semitism became the dominant form of anti-Semitism from the late 19th century until today. It replaced the belief that the religion of Judaism was to be hated with the idea that Jews themselves were a racially distinct group regardless of their religious practice and that they were inferior or worthy of animosity. It is racial anti-Semitism—will the Home Office please listen and note?—that is made unlawful under the Race Relations Act, just as racial Islamophobia is covered by the Race Relations Act. To meet the criticism of extreme vagueness of religious harassment, the Home Office relies on the fact that similar language has been used in regulations to give effect to EU directives. That is true and it is regrettable that the Government have not exercised the option under the directives to define harassment more precisely to accord with the British legal tradition. In any event, the provisions of Part 2 of the Bill are not required by EU law; we have a free hand. The Home Office letter adds:"““If it is desirable to define harassment more closely we consider the place to do so is the Discrimination Law Review with the issue can be looked at across various discrimination strands, not in relation to one equality strand alone””." We agree and that is why we seek to remove the tort from the Bill so that it can be considered by the review instead of being a flawed part of the law of the land. To meet the criticism that the Home Office has inconsistently excluded religious, unlike racial, harassment from the provision of goods, facilities and services to the public while keeping it for housing, education and public services, the Home Office has come up with an entirely new and misguided argument. It says that,"““significant power is exerted in a relationship, as it is in public functions, or employment or education or in the relationship between landlord and tenant””." That is a novel argument that I have never heard before in an attempt to justify not following the Race Relations Act in relation to racial harassment, which applies to goods, services and facilities. The first answer to that argument is that the Race Relations Act draws no such distinction based on significant power—whatever that means—and the Home Office cannot explain why a different approach should apply to religious harassment. Surely significant power may be exerted in relationships covered by Clause 46, such as between a bank and its customers, or an airline and its passengers, or a theatre and its audience, or a hotel manager and his guests. It makes no sense to exclude the tort of religious harassment from those and all other Clause 46 functions but to include the tort of religious harassment in the relationship between a landlord and his tenants, or a teacher and her pupils, or in sensitive public services such as healthcare. If legitimate concern about the harmful effects of this vague tort persuaded the Home Office to exclude it from goods, facilities and services until the review is concluded and a new Bill is introduced, surely the same should apply across the board. The Government also suggest that there is ““a less obvious imbalance”” in relation to the provision of goods, facilities and services to the public but ““significant power”” may be exerted in all these relationships. If it is right to,"““consider more deeply the position in relation to relations between individuals and service providers””," as the Government say, then surely it is right to consider more deeply those matters in all contexts. In amendment No. 13, the Home Office now proposes to include an exception for the innocent,"““display of any material or article””." Clause 45 covers anything done that has the purpose or effect of violating a person’s dignity or creating an offensive environment. The Home Office letter obstinately refuses to delete the effect leaving only ““purpose”” as proposed by the noble Baroness, Lady Miller. The Home Office believes that,"““to require proof of an intention to harass in the circumstances in which Clause 47 applies would be to go too far””." However, the newly fangled Home Office amendment states that,"““Action taken in connection with the display of any material or article is harassment for the purposes of subsection (1) only if taken for the purpose of producing a result specified in subsection (1)(a) or (b)””." So the Home Office now recognises the need to prove intent rather than the effects of action taken in connection with the display of any material or object, but not for example if a landlord plays religious music at Christmas in the entrance hall of his flats in an attempt to persuade his tenants to join the church and save their souls. Even as amended, the religious harassment provisions would still catch proselytising by way of religious displays and materials such as posters, Bibles, crucifixes and so on because they involve deliberate attempts to persuade people of a different faith or no faith to join the church and they may be interpreted as harming human dignity—whatever that means—or creating an offensive environment. The display of a ““Jews for Jesus”” poster to persuade me to see the light would violate the dignity of observant Jews and create an offensive environment with the necessary mental element to constitute the tort. That is why the amendment tabled by the noble Baroness, Lady Miller, is not good enough. It would be a deliberate act causing offence to many Jews. Yet why should it be forbidden by law? It was because of concern for free speech that the Home Office did not apply religious harassment to booksellers. But the same considerations apply to what remains of religious harassment in the Bill. The Government are trying at the eleventh hour to mitigate the harmful effects of the tort which suffers from the twin vices of vagueness and over-breadth. But their amendments will not remove the flaws from these flawed provisions. I will give a few examples before I conclude. Suppose the Christian evangelical owner of a block of flats illuminates his property with Christmas lights around a model depicting Jesus in the crib in the manger, and he does so intentionally to spread the good news of the birth of Christ to his tenants so that they may abandon their Jewish or Muslim faith—or no faith at all. Or suppose that a secular Muslim property owner wishes to display in the entrance hall a copy of the artistic work that unfortunately had to be removed under pressure from Tate Modern showing the Koran in a broken condition and in need of repair. Suppose she does so with the intention of persuading fundamentalist Muslims to modernise their religious practices and utterances, like the editor of the women’s magazine in Afghanistan who was recently given two years’ imprisonment for challenging a belief that Muslims who convert to other religions should be stoned to death. Such action in those two examples would constitute deliberate religious harassment and could give rise to legal proceedings for damages or a declaration or an injunction. That would seriously threaten free speech—the very reason which prompted the Home Office to exclude religious harassment from the provision of goods, services and facilities. The exemption for religious objects would be no defence. Given the undefined nature of what constitutes ““religion or belief””, of ““violating human dignity””, or of ““an offensive environment”” in Clause 47(1), and the absence of any filter between claimant and defendant in proceedings brought under Clause 67, the inclusion of this tort would, we believe, encourage divisions within the community and litigation that was against the public interest. I am sorry to have taken so long. I shall not speak again on this. But for all those reasons we on these Benches hope that the Government will accept our amendments and refer these issues to the Discrimination Law Review for full consideration.