Committee (4th Day)
Clause 83 : Interpretation and exceptions
Amendment 97ZA had been withdrawn from the Marshalled List.
Clause 83 agreed.
Schedule 8 : Work: reasonable adjustments
Amendments 97A to 97D not moved.
Schedule 8 agreed.
Schedule 9 : Work: exceptions
97E: Schedule 9, page 165, line 3, leave out paragraph (f)
I shall also speak to Amendment 119A tabled in my name and those of the noble Baronesses, Lady Campbell of Surbiton, Lady Neuberger, and Lady Noakes.
Amendment 97E seeks to offer priests the same employment protections in relation to their sexuality as other members of society. As the law stands, an individual cannot be sacked for simply being gay, except, as I explained at Second Reading, one class of people—and that is the clergy. At Second Reading, the right reverend Prelate the Bishop of Chester suggested that the way in which faith communities operated is sexuality-neutral. But the church’s stance was based on an intolerance towards sexual relationships outside marriage, whether they were gay or straight. I said then that I thought the right reverend Prelate was mistaken, and I am pleased to clarify the point.
What the law actually says is that an exemption is made for,
“a requirement related to sexual orientation”.
Sexual orientation is not the same as having sex inside or outside of marriage. This is not semantics, and it is at the heart of what I am seeking to correct. Simply by being gay, the law allows religious organisations—in this case the employer—to sack a priest, in this case the employee. So even where a gay man takes a vow of celibacy, the law still allows for his dismissal. The law is not about adultery; it is not about sex outside of marriage; it is not even about gay sex. It simply allows for the dismissal of the individual for being gay. I am not sure that is what we intended when we wrote the Bill. It is like saying it is all right to be sacked for simply being black. How can that be right?
There are very few people who do not know of gay members of the clergy. In fact, I suspect from the letters I have had that the Church of England is full of them. It has to be asked: what is the purpose of this law? Why is it there? Let me tell you what a law like this does while it remains in place. It creates a climate of fear and insecurity. It is a threat. It does what all nasty bits of discriminatory law do—it wields the power to destroy somebody’s life, but it holds it in reserve.
Be in no doubt—this is an unpleasant and spiteful provision, in my view unintended to be so. Ever since I made it clear that I was going to bring forward this amendment, I have had many discussions with people inside and outside the church. Many have quoted Article 9 of the European Convention on Human Rights. But all rights flowing from that convention have a caveat that limits their effect, as long as they do not disturb other people’s rights. Article 9—or, indeed, Article 8 which protects gay people from discrimination—does not apply when looking at this provision. A policy of “don’t ask, don’t tell”, if you are gay, but keep it under wraps or risk losing your job, is simply wrong. It will never be right. That is the reality which gay priests, whether they are celibate or not, must face every day. It is a fear that they live with. This is the persecution which I believe we should seek to fix in this Bill at this time.
I hope Amendment 119A will be less controversial. Its intention is to remove the prohibition against civil partnerships taking place in religious buildings. I shall repeat that: it is to remove the prohibition against civil partnerships taking place in religious organisations. It is a straightforward amendment. It does not seek to force religious institutions to host civil partnerships and I would not intend it to. It simply has to be a matter for them to decide whether or not they wish to do so.
There can be no doubt, however, that civil partnerships have been a huge success. I suspect that many noble Lords will have been touched in some way by the range of civil partnerships that have happened in the community. Noble Lords put through this House a really significant measure. I want to reiterate my thanks to the many noble Lords who helped that provision find its way on to the statute book.
In July last year, the Quakers passed a resolution which, in effect, would allow civil partnerships to take place in Quaker meeting houses. I know that other religious groups are seeking to follow suit, such as Liberal Judaism, the Metropolitan Community Churches and the Unitarian Church. It seems rather perverse that the law prevents them from doing so: the law no longer respects religious freedoms; it seems to be dictating religious behaviour, which cannot be right.
At Second Reading, I was heartened by the speech of the right reverend Prelate the Bishop of Chester, who mentioned that he might be more sympathetic to the amendment. The support of the church on this provision to remove the prohibition would be a simple and generous step to take. I know that the noble Baroness, Lady Noakes, hoped to speak on this amendment, but unfortunately she has been detained. She asked me to make it clear that she would have supported it and that she wanted to speak in this debate.
I hope that my noble friends on the Front Bench will think very carefully about supporting the amendment and will give it further consideration, as it will benefit the lives of many people of faith. I beg to move.
I wish to speak to Amendment 119A. As the noble Lord, Lord Alli, has cited, it is four years since civil partnerships became lawful in this country. During that time, 35,000 couples have entered into a civil partnership. That has brought huge happiness, recognition and benefits to couples across the UK. We all know that, at present, civil partnerships, like civil marriages, cannot be conducted in religious premises.
Unlike heterosexual couples who have a choice, gay couples are disbarred from making any sort of faith commitment within a religious building. As president of Liberal Judaism, which was the first religious organisation, as far as we know, to produce and publish a liturgy for same-sex commitment ceremonies, I believe that those faith groups and individual organisations that wish to allow civil partnerships to take place within their religious premises should not be prohibited from doing so. That would mean a civil partnership taking place within a Quaker meeting house, for example, or in a Unitarian church, or in a Liberal Judaism synagogue, followed by some kind of faith-based commitment ceremony, the second following naturally from the first.
I want to make it clear that those faith-based organisations which support the amendment do not argue that everyone should allow such ceremonies. This is purely a permissive amendment to allow those who wish to do so the right to do it. I have some personal experience in this area. I have officiated at many same-sex commitment ceremonies which I have found uplifting and moving. Often there is a sense of joy far beyond that experienced with heterosexual marriages, however delightful they are, as only recently have gay couples, who have been together for years, been able to have any kind of public ceremony. We have come a long way but there is a little further to go.
Recently, I talked to two registrars at civil partnerships where I have been a guest and where I have officiated at a commitment ceremony later on. They said, speaking from their personal viewpoint, that they find the prohibition on the use of religious premises strange. They argue that for many people, at whose ceremonies they have officiated, a religious element would have been desirable had it been possible. In my experience, there has been real joy for gay couples who have had a religious element after a civil partnership ceremony. That has been carried out at a reception in a hall or wherever and not in a synagogue. On two occasions, the couples concerned had specifically told me how they would have been overjoyed and, even more—this is very Jewish—their parents would have been overjoyed, if they could have had a ceremony within a synagogue as well. I believed them: they had tears in their eyes as they raised that with me. The prohibition meant that, in some way, what they had was second best.
When we in Liberal Judaism published our liturgy for same-sex commitment ceremonies and encouraged couples who had been through a civil partnership ceremony to have a religious commitment ceremony afterwards, we were responding to a deeply felt desire. I support the amendment because I believe that it is a matter of common justice that we recognise the love and commitment of same-sex couples. I can see no reason why there should be a prohibition against such ceremonies taking place on religious premises.
The Religious Society of Friends, the Unitarian Church and the movement for Liberal Judaism are all in accord on this and I hope that people of other faiths, or other parts of the same faiths, will see that we are seeking to overturn a prohibition and by no means forcing others to do the same as us. I believe that this should be a matter for religious organisations to decide for themselves and that, once they have done so, the law of the land should not stand in their way.
My Lords, I have received a powerful letter from a Quaker telling me something I had not known before—that the Quakers, at their yearly meeting last year, decided to seek a change in the law so that what the noble Baroness, Lady Neuberger, described could come to pass. This is a permissive amendment and I am utterly persuaded by it. I would be totally opposed to it being a requirement, because many churches would find this utterly abhorrent; but in so far as there are churches and synagogues and other faith places that would like this to happen, it is entirely appropriate and I support the amendment.
My Lords, I support Amendment 119A moved by the noble Lord, Lord Alli. It feels very good to be supporting another part of the Bill. I am not, I hope, just a disability lobby. I feel very passionately about the whole equality agenda, and was persuaded to add my name to this amendment because I see the issue as a matter of religious freedom. I support its permissive approach: it seems good to enable the various religious denominations which now wish to perform and bless civil partnerships to be able to do so. There is no suggestion that this may be mandatory; I have had many conversations with my Christian friends over the past few weeks to talk about the permissiveness of this approach, and they feel that it is a fair approach.
Some of your Lordships will have received a briefing note from the Quakers and others who feel that they should be able to follow the insights of their members in celebrating long-lived committed relationships between man and man or woman and woman in exactly the same way as they currently recognise the marriage of opposite-sex couples. Our laws sometimes need to adapt to catch up with society. I think that this is clearly the situation here. For me, accepting and valuing human diversity by supporting our fundamental differences will be the glue that binds us in the future. I urge your Lordships to support the amendment.
My Lords, the noble Lord, Lord Alli, suffers, as do the churches, from the determination of the Government and others to use the language of orientation when it is perfectly clear—and I am sure that it is perfectly clear to him—that the issue for the churches and for people of some other faiths is of sexual behaviour, not of sexual orientation. However, granted the language that is used, both in European legislation and in our own, we have had no alternative but to go along with this language of sexual orientation when it is actually sexual conduct that is the matter at stake for the churches. I should be very surprised indeed if the noble Lord had any evidence of any clergy being put at any kind of risk at all simply on the grounds of their orientation, in the sense that the churches use the word, as opposed to their conduct in matters sexual.
It also needs to be clear—the noble Lord himself was very clear—that the churches have a particular understanding of marriage. The right reverend Prelate the Bishop of Chester was right when he said that this is not distinctly aimed at gay people, but at the question of sexual conduct, whether marital, heterosexual or homosexual.
Rather surprisingly, too, the noble Lord concentrated simply on priests. The churches’ interest in these matters—we will come to this when we discuss the next group of amendments—lies in our absolutely rooted conviction that a person of faith seeks to live in every respect according to the teaching, tenets and vision of the faith of which they are part. That is just as much a matter for certain lay people in the employment of the churches as it is for clergy.
Lastly, there are exemptions in the Bill on a whole range of points, such as the need for disability organisations to be able to employ particular people, for organisations connected with race and ethnicity to employ people of a particular ethnicity at certain points, and for crisis centres and women’s refuges to employ particular people of a particular gender. It would be discriminatory if the House and Parliament went down the route suggested by the noble Lord’s amendment.
On Amendment 119A, noble Lords will well remember the Civil Partnership Act, in which civil partnership was postulated in significant ways as being analogous to civil marriage, notwithstanding the fact that nothing in that Act says in any way at all what a civil partnership is or to what those entering into it are committing themselves. Her Majesty’s Government in that process made it absolutely clear that they did not regard the civil partnership as a form of marriage.
The amendment in the name of the noble Lord, Lord Alli, and to which noble Baronesses have spoken so clearly, would blur the distinction between civil and religious marriage as two paths to effect what is in law the same relationship, because registrars by law are not permitted to engage in, or to allow others to engage in, any kind of religious ceremony in a civil marriage. It would also blur the characteristics of the civil partnership as distinct from marriage, whether conducted in a church service or by a registrar.
Shortly down the line, were this amendment to be passed—I understand that Stonewall has made this intention entirely clear—is the likelihood of a steady and continuing pressure on, if not a forcing of, the churches, the Church of England among them, to compromise on our convictions that marriage has a character that is distinct from that of a civil partnership. Churches of all sorts really should not reduce or fudge, let alone deny, that distinction. That is why we should refuse the noble Lord’s amendment, enticing though it is.
My Lords, I support Amendment 119A. The Government were absolutely right to respect the religious sensitivities of the Church of England when the Civil Partnership Bill went through Parliament, but since that time a new situation has emerged. The Quakers, liberal Jews and other religious bodies have made it quite clear that they want permission to conduct these ceremonies in a religious context with religious language. This is a fundamental issue of religious freedom not just for the individual but for what Burke called one of the little platoons—the institutions—of our society. Their freedom should be respected in this regard.
My Lords, I was privileged to attend here in Westminster the civil partnership celebration of a very senior British medical doctor and his American partner. It was a very moving and lovely ceremony, but they had another ceremony in New York in their church. They are deeply committed Christians, and that dimension was quite different and terribly important to them. It made them feel that they were on a par with everyone else. I support the amendment.
I also support Amendment 119A. It is quite clear from the briefings, which we have had from all sides, that this is a permissive, not a mandatory clause. If the Church of England wishes to continue in the way it always has, then that is entirely a matter for it. I am sure it will be able to stand up to whatever extra pressure is put as time goes on. On the churches that clearly want to be allowed to do this, if the particular organisation, church, priest or whoever is in charge wishes to perform such a ceremony, we should allow what people at other churches want. I support the amendment.
I apologise for speaking again from these Benches, but one important distinction is being missed. A lot depends on what you mean by “a church”. You might say that the Church of England may carry on in the way that it wants to, but the people responsible for marriages in the Church of England are not an abstraction called the Church of England or even, although I may sometimes wish it were different, the bishops; the people responsible are the incumbents of parish churches. I am sympathetic to this amendment and hope we may find a way that would enable those religious bodies that are quite comfortable with this to proceed in that way. However, I fear that to pass the amendment in its present form would put pressure not on the national institution of the Church of England but on the incumbents of the parishes and lead to widespread disarray throughout the Church of England. I hope there may be some room for manoeuvre over this, but as it stands it would achieve something different from that which is intended.
First, we do not support Amendment 97E because it is not necessary. We hope that the noble Lord, Lord Alli, will not find it necessary to divide the House on it. However, we support Amendment 119A for reasons I will briefly give.
Amendment 97E seeks to remove sexual orientation as an occupational requirement that may be used as a reason not to employ someone for the purposes of employment by a religious organisation. Paragraph 2 of Schedule 9 lists the exceptions for occupational requirements where the employment is for the purposes of an organised religion, and those reproduce the existing exceptions in the Sex Discrimination Act and the sexual orientation regulations. Article 9 of the European Convention on Human Rights protects the fundamental right to freedom of thought, conscience and religion, and Article 8 protects the right to respect of private and family life, including a person’s sexuality and sexual identity.
I respectfully put it to the right reverend Prelate the Bishop of Winchester that the distinction he and others seek to draw between it being okay to be gay but not okay to have sex while being gay would not be recognised under the European convention, any more than would be the distinction drawn between sex outside and inside marriage. It represents a deeply held and sincere belief by some devout Christians—which I respect—but it is simply not the case that, for example, people who enter into a civil partnership are okay if they do not have sex together. The whole point of the relationship of being sexual partners is that you have an enduring and loving relationship in which sex is a perfectly normal activity. With respect, that distinction would not pass muster under European convention or European Union law.
It is important to recognise—I hope here the bishops will cheer up—that in accordance with Article 9 of the convention, religious organisations are entitled to organise themselves in accordance with their beliefs and those of their followers. For example, it is well recognised that a church or ecclesiastical body may as such exercise on behalf of its adherents the rights guaranteed by Article 9 of the convention and that any interference must be proportionate. The Article 9 rights of the churches and their supporters and/or believers potentially conflict with the Article 8 rights of gay and lesbian people.
In recent years, the right to non-discrimination on the basis of sexual orientation has become enshrined in European law. Convention case law has established that Article 14 includes differences of treatment because of sexual orientation, with no distinction drawn between having sex or being gay. Convention law requires that where sexual orientation is the ground for a difference of treatment, there must be significant and convincing objective justification for the treatment. The Joint Committee on Human Rights, of which I was a member, made that clear in its report on the sexual orientation regulations in 2007.
The same is true under EU law. I will not detain the House by quoting from the framework directive. Suffice it to say in reassurance to the noble Lord, Lord Alli, that the only exception permitted in striking a fair balance between religious freedom and the right of respect for the private life of gay and lesbian people is one which accords with the strict test of proportionality. Therefore, the amendment which seeks to remove the safeguard for churches is overkill and unnecessary.
Amendment 119A would amend the Civil Partnership Act by removing all bans on civil partnerships which take place in religious premises or using religious services. I was the author of the Private Member’s Bill which resulted in the Civil Partnership Act, so I am naturally very sympathetic to the amendment. I agree with the powerful speeches that the House has heard from the noble Baronesses, Lady Neuberger, Lady Greengross and Lady Howe of Idlicote, the noble and learned Baroness, Lady Butler-Sloss, and the noble and right reverend Lord, Lord Harries of Pentregarth. Many religious same-sex couples want to have their partnerships blessed by religious organisations. Others feel that civil partnerships are not equal to marriage. Article 12 of the convention guarantees the right to marry, but this applies only to a man and a woman. In the United States, litigation is pending to establish a constitutional right of same-sex couples to marry. I doubt that it will succeed.
Amendment 199A does not go so far. It would permit but not require a religious aspect to be given to civil partnership ceremonies if the church or other religious body agrees. I believe that this is an issue which needs to be dealt with. As the noble and learned Baroness, Lady Butler-Sloss, said, this is permissive and is not in any way an imposition. Regrettably, I doubt whether we can do that in the Bill, which does not mean that we should not do it. It may be that we can do it in the Bill, but broadening the application of Article 8 of the convention in respect of the private and family life of same-sex couples needs to be done in a way that does not require religions to jump one way, as the right reverend Prelate the Bishop of Winchester would jump, or the other way, as, for example, the Quakers or liberal Jews would jump. As to churches, there is an issue about how religious acceptance in the Bill might work. The public function would be considered as regards the registration in providing a facility or service in a religious setting. There are also some convention issues about civil marriage.
While we fully support the amendment in its object, we hope that the Minister will express the Government’s support for the principle of Amendment 119A and will undertake to consult speedily on whether and how it can be put into law, having of course consulted religious organisations, gay rights organisations and the public at large.
My Lords, I may be very naive in this matter. I was not present in the House in 2004 when the Civil Partnership Act was passed. I was playing judicial truant at the time and I apologise for that. It seems to me that two simple questions are raised. First, is it proper for a religious organisation that wishes to bless a civil partnership to be proscribed from doing that? Secondly, is it correct that the individual involved in that civil partnership should be denied that blessing if that religious organisation wishes so to pronounce it? It seems to be entirely a question of whether or not there is any good reason at this stage for that limitation. As to why it was brought about in 2004, I know not. It may very well be due to sensibilities relating to religious organisations, but it is entirely permissive. It does not place any obligation upon anybody who does not wish that obligation to be so placed.
My Lords, I have already declared my interests at the start of Committee stage. There is a further interest I should declare as a churchwarden in the Church of England in the County of Somerset in the benefice of Chewton Mendip and Emborough. In that capacity, I have come across several examples of the situations that we are now debating. The problem here is that there are two separate issues. The noble Lord, Lord Alli, wants to remove any possibility of there being a requirement related to sexual orientation for any form of employment. The second amendment, which is on a separate issue, means that there would be no ban on allowing civil partnerships to take place on religious premises.
As I understood it from the noble Lord—several noble Lords who have participated in this debate have echoed this—the second amendment is intended to be permissive. In other words, his intention is not to force religious premises to hold civil partnership ceremonies but to allow them to do so with their permission. I recall, as he reminded us, that on Second Reading the right reverend Prelate the Bishop of Chester suggested he would be happy to get into discussions with the noble Lord regarding his suggestion of,
“some sort of permissive arrangement for the faith communities”,
which, he said,
“would be worthy of careful discussion”.—[Official Report, 15/12/09; col. 1449.]
I have not yet heard what has been the result of those discussions and whether there were any further ideas brought to the table. This topic ought to be thought through with the seriousness that it deserves. As we have just been reminded, there were debates on this issue when the Civil Partnership Bill was in Committee in this House. I remember that we were informed by the noble and learned Baroness, Lady Scotland, that civil partnerships were to,
“stay absolutely within the secular field and do not trespass on the different and sometimes conflicting religious beliefs of others, who may adhere to a plethora of religions”. [Official Report, 12/05/04; col. 140.]
As I understood the position, therefore, both civil marriage and civil partnerships were to mirror each other and remain entirely secular. That is what we decided. In other words, to carry out a civil partnership ceremony in a religious premises would be a breach of the law. The Government have therefore made their views well known on this subject. We on these Benches would agree with their view. The civil partnership ceremony and the civil marriage ceremony are considered equally and neither can take place on religious premises.
The debates on the Civil Partnership Act informed us that, while the actual ceremony could not take place on religious premises, a religious centre would then be allowed to act in whatever way it wished as regards the couple. They could, for example, give them a blessing—we have had one example of this—or add some other religious element to the day. Perhaps the Minister could inform the House whether this is still the case. Does the Minister have any figures or estimates as to the number of couples who add a religious element on to the end of their civil partnership? Indeed, has any research taken place to think through the impact of the proposals being made by the noble Lord? I strongly agree with the noble Baroness, Lady Neuberger, that we have come a long way. I greatly welcome the fact that we have done so, but we must pause for a moment and consider how much further we should go in what is a very sensitive area.
The amendment of the noble Lord, Lord Alli, would prevent sexual orientation ever being a requirement for a position of employment, and I think he recognises that what he says involves controversy. He does not believe that anyone should be sacked from or persecuted in their job or vocation because of their sexuality. However, does he accept that whatever his intentions, which we can understand, this would be an attack on the central doctrines or tenets of various religious organisations, some of them very influential in our lives?
We have to address more fully the scope of exemptions applied to employment regulations, which we will do in later debates. Perhaps it suffices to say now that we believe it is right to preserve the status quo regarding employment provisions, but when the noble Lord comes to consider what action to take, I would like to ask him whether he considers that religious organisations that believe in gender specification being a requirement for employment, such as the Roman Catholic church which believes that women should not be priests, should be allowed to make such specifications. Also, if he believes that sexual orientation should not be allowed to be part of a specification for employment, what is his reasoning behind allowing gender and certain other characteristics to remain? We would argue that they should remain as they are, but if the noble Lord is interested in changing the law for one characteristic, he has to look at the possibility of changing it for others as well, which is why we on these Benches are not minded to support his amendment.
Amendment 97E in the name of my noble friend Lord Alli would mean that a requirement related to sexual orientation could no longer be applied by an organised religion in relation to employment for the purposes of the religion. For example, the Church of England could no longer require a gay Minister to be celibate, should it so wish. Paragraph 2 of Schedule 9 replaces and harmonises separate exceptions in current discrimination legislation for occupational requirements where the employment is,
“for the purposes of an organised religion”.
The existing exceptions are contained in Section 19 of the Sex Discrimination Act 1975 and Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003.
Paragraph 2 and Regulation 7(3) both refer to a requirement “related to sexual orientation” rather than to be of a particular sexual orientation. This choice of wording was deliberate so as to accommodate the concerns of some churches about certain forms of sexual behaviour rather than sexuality as such. However, a person is protected from discrimination because of how their sexual orientation is manifested, such as being in a same-sex relationship, as well as because of their sexual orientation. If “requirement related to sexual orientation” was removed from the exception, a church would not be able to require a minister of religion to be celibate if they are not married. This is because only a person who is heterosexual could meet the requirement to be married. Therefore, the requirement would constitute discrimination because of sexual orientation, unless it was allowed by the exception.
In the Government’s view, paragraph 2 of Schedule 9 strikes an appropriate balance between competing rights. The rights in question are the rights of followers of organised religions to manifest their religion and the rights of others not to be discriminated against because of sexual orientation. The Government would risk upsetting that balance if we were to prevent churches and other organised religions from manifesting their religion in the limited circumstances allowed by the exception.
The Joint Committee on Human Rights also considers in its recently published report on the Bill that,
“in general, the provisions of Schedule 9(2) … strike the correct balance between the right to equality and non-discrimination and the rights to freedom of religion or belief and association, especially if interpreted in line with the approach set out in Amicus v Secretary of State for Trade and Industry”.
In that case, the High Court decided that Regulation 7(3) of the 2003 regulations does not interfere with any rights under Article 8(1) of the European Convention on Human Rights. In other words, Regulation 7(3) does not involve any violation of the private rights of gay, lesbian and bisexual people. It simply limits the scope of what the regulations add to existing rights. That applies equally to paragraph 2 of Schedule 9 because it has the same effect as Regulation 7(3) of the 2003 regulations.
Amendment 119A, also spoken to my noble friend Lord Alli—
In the Amicus case the Minister referred to, the learned judge Mr Justice Richards went on to say:
“It was entirely proper … for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims … in these proceedings. The balance struck is proportionate”.
He also made clear that the exception had to be strictly construed. Can the Minister confirm that?
The noble Lord is, as ever, completely right and I thank him for his remarks.
Amendment 119A, as the noble Lord, Lord Hunt, pointed out, is a different issue. This amendment seeks to remove the prohibition which prevents civil partnerships from taking place in religious premises and from including religious language. This amendment, however, is not a workable solution to this issue. Amending the Civil Partnership Act in this way could lead to inconsistencies with civil marriage, have an unexplored impact on devolved Administrations, and lead to confusion on what is permitted and what is required. I will therefore be asking my noble friend to withdraw his amendment. However, as with many others who have spoken, I am not unsympathetic to his intentions.
I will outline why we think there is a problem and what issues would need to be solved for us to proceed with this matter. The Government have been at the forefront of introducing measures to protect the rights of lesbian, gay and bisexual people. The Equality Bill replicates the comprehensive protections from discrimination because of sexual orientation which we put in place in 2003 in the employment area and extended in 2007 to services and public functions. Civil partnerships provide lesbian and gay couples with legal recognition of their relationships, giving them vital protections and benefits. As has already been mentioned, 35,000 couples have formally registered their relationship since the Act came into force at the end of 2005. The noble Lord, Lord Hunt, asked if research has been undertaken on how many people have added a blessing to this. I do not have those figures but the noble Lord’s point underlines the point I was making about the things we need to consider as we move forward in this area. Civil partnerships were originally designed to be broadly similar to civil marriage. Let me repeat what my noble and learned friend the Attorney-General said:
“Just as with civil marriage, these unions will be entirely secular and the restrictions on religious content and religious premises therefore mirror the position for civil marriage”.—[Official Report, 12/5/2004; col. 139GC.]
That is one of the issues that would need to be resolved.
My noble friend wants lesbian and gay couples to have the opportunity to enter into a civil partnership in a religious setting if they wish to do so and if the religion in question allows it. That is, at present, not permitted. Indeed, it is expressly prohibited in the provisions that my noble friend’s amendment seeks to delete. As is the case for civil marriage, which is regulated by the Marriage Act 1949, civil partnerships are entirely secular in nature. As such, they cannot take place in religious premises or contain any religious language. The secular nature of these civil unions clearly separates them from religious unions. It is open to churches and the religious community to arrange blessings for civil unions or not, according to their own tenets.
My noble friend’s amendments would change the present position of parity between civil partnerships and civil marriages. We would find ourselves in the anomalous position of allowing, for example, prayers to be said at a secular venue in the course of forming a civil partnership but not when solemnising a civil marriage. One consequence would be that this would appear to discriminate against heterosexual couples who might want a religious element to be added to the proceedings for their civil union. We have to consider the practicalities of that situation. Would he require a now secular registrar to carry out religious services? Would members of the clergy be able to conduct a ceremony not in their place of worship? These are the kinds of issues that need to be teased out.
As we have heard, some denominations, such as the Quakers, have been clear about their wish to carry out same-sex religious partnerships. However, different faiths have different views on these issues. Further, the legal position in relation to the solemnisation of religious marriages differs between different faiths, and such matters are often closely entwined with doctrine and teachings. For instance, in some faiths it is the building that is approved for the solemnisation of marriages, while for others, such as Quakers and Jews, there are greater freedoms about where to marry. Under the Marriage Act 1949, places of worship are currently registered only for the solemnisation of marriage, and therefore we could end up with the situation where we have legislated for religious partnerships but there are no buildings where they can take place and no one who can perform such a ceremony. There are also, as ever, different arrangements for Scotland and Northern Ireland. These are not reasons for not looking seriously at the issue that my noble friend has raised, but I hope that they illustrate the complexities of moving forward.
We fully accept the fundamental importance of this issue to many same-sex couples, and we recognise the strength of feeling that some people have about the need for change. We also recognise, though, that any change would bring into play some fundamental issues and would risk undermining the parity that has been carefully established between civil partnership and civil marriage. Any change can therefore be brought only after proper and careful consideration of these issues, which is why it is important that we listen, discuss and consider views on this important issue, particularly the views of those churches and organisations that want to conduct same-sex unions on a voluntary basis so that same-sex couples can have the opportunity to formalise their relationships in a religious setting.
We want this dialogue to move forward and we want all those with an interest in this issue to have their say. We believe that this careful consideration will pay off in how we proceed together to the next stage of resolving this issue. I hope that my noble friend accepts the reasons behind the need to resist this amendment, and that he will support the Government’s commitment to look at this issue further. I call upon him to withdraw his amendment.
My Lords, I agree with the right reverend Prelate the Bishop of Winchester—the first and the last time I shall say that in this debate—that the language on sexual orientation may be incorrect: we may be talking about sexual conduct, not sexual orientation. That is what I would like to see as correct in the Bill.
The right reverend Prelate asked whether there were any examples of this form of discrimination in the church. I shall give him two: Dr Jeffrey John, required to step down as Bishop of Reading in 2003 in spite of being celibate, and John Reaney, refused a job as a youth worker by the Bishop of Hereford in 2005 in spite of an agreement that he would be celibate. So there are examples, and we need to think about them carefully.
We will differ on that matter. The issue in Amendment 97E is about the wording regarding sexual orientation, and I would like the Government to look at that and see if they can do something about it.
The noble Lord, Lord Hunt of Wirral, asked a question about women priests. The noble Lord and I should maybe avoid that entire debate at this stage of Committee as I fear it could go on for some time, but I would say to him that to my knowledge there are no women priests, in any church, trying to conceal their gender for fear of discrimination. There is a significant difference between sexuality and gender.
I thank all those who have spoken on Amendment 119A. The majority of speakers, with the exception of the Benches Spiritual, reflected the mood of most people outside this House, where there would not be an objection to this. This is a permissive amendment. It does not seek to force the churches into taking any kind of action. It simply seeks to remove the prohibition. Most people would probably judge that to be a fair thing.
My Lords, that is a point that confuses me; perhaps others can enlighten me. A civil marriage with a religious component is surely a marriage. If you want to marry with a religious ceremony, you are allowed to do so. It is called a marriage. If you wish to have a civil partnership and you want to share that celebration with people of your own faith and, more important, they want to share it with you, and their church permits it, this amendment would allow it to happen. There is a difference, but heterosexual couples have a solution because they can get married in church. That should satisfy both those needs.
This is not meant to be an attack on the central tenets of religion. The Quakers, liberal Judaism and the Unitarian churches want these provisions to allow them to start their debate.
I was a little disappointed by the responses of the Front Benches on all sides of the Committee. Maybe it is the way the usual channels work; maybe it is because this Bill has a pace; maybe we do not want to enter into these discussions at this stage in Parliament. Normally in the winding-up it is for the proposer to say, “I will read the Minister’s comments carefully and reflect on them”. I ask for the opposite. Will the Front Benches read carefully what the Committee is saying to them and think carefully about what they have heard, which has been a reasoned debate, with reasoned arguments from all round the Committee? Will the noble Baroness and the noble Lords on both Front Benches please think again? I hope that they will support this amendment. In the interim—
My Lords, the noble Lord has expressed disappointment with all the Front Benches, but will he accept from me—having, as it were, started the whole business of civil partnerships—that we fully support the object of his second amendment? We are concerned not with boring technicalities but with dealing with the difficult problems that the Minister has indicated so that we can achieve the results that he, and we, would like.
Amendment 97E withdrawn.
98: Schedule 9, page 165, line 5, leave out “application is a proportionate means of complying” and insert “requirement is applied so as to comply”
My Lords, it is a privilege to open a debate of such importance and interest to so many people. I am grateful for the support that I have received from many noble Lords for what we seek to achieve. In particular, I thank the noble Lord, Lord Anderson, the right reverend Prelate the Bishop of Winchester and the noble and learned Baroness, Lady Butler-Sloss, for co-sponsoring my amendments. Unfortunately, due to the timing of this debate, the noble Lord, Lord Anderson, has had to go to Strasbourg to fulfil his commitments to the Council of Europe. However, he supports the amendments.
I intend to test the opinion of the Committee on these amendments. Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs. It would, for example, be appalling if the Labour Party could be sued for not selecting Conservative candidates and no one would want to see Greenpeace sued for refusing to appoint oil executives to its board of directors.
A belief in freedom of association demands that, even if we do not share the beliefs of an organisation, we must stand up for its liberty to choose its own leaders and representatives. That, in essence, is what this debate is all about. I accept that the Government intend to protect the freedom of churches to choose their own staff, but their wording does not mirror that intention. The exemption in paragraph 2 to Schedule 9 to the Bill allows churches to discriminate on the grounds of sex, sexual orientation and marital status when making appointments to key religious posts. An exemption along these lines has existed for more than 30 years. Some think that this is special pleading for the churches, but the principle of exemptions is widely accepted, not just for religion.
Paragraph 1 of this schedule is a general employment exemption that applies when being of a particular race, sex or other protected characteristic is a crucial requirement for a particular job. This makes perfect sense. My next point has already been mentioned today, but how would a rape crisis centre operate if it was forced to employ male counsellors? Beyond the employment sphere, Schedules 3 and 6 contain broad exemptions for insurance, political posts and for Parliament itself. Clause 193 even contains an exemption for sport, so the churches are not alone in needing limited exemptions from discrimination law in order to allow them to function normally.
It has been said that paragraph 2 is intended to be nothing more than a restatement of existing exemptions for religion. However, the Government have tinkered with the wording. Whereas the key phrase,
“employment is for the purposes of an organised religion”,
was previously undefined, the Government decided to insert a new definition, contained in paragraph 2(8). In addition, whereas previous legislation did not include the qualifying word “proportionate”, that word now appears twice in paragraph 2. If the Government’s intention was to maintain the status quo, as they have said continuously since April 2009, why not use the same wording? After all, it has been in use without difficulty since 1975, when it was incorporated in the Sex Discrimination Act. By tinkering, they have caused enormous concern among religious groups. It is essential that the wording is returned to what it was. All the religious groups and their lawyers say that the result of my amendments would be the retention of the status quo. That is what we want—nothing more and nothing less.
Many noble Lords will have received briefing in support of Amendments 98, 99 and 100 from the Church of England and the Roman Catholic Church. Support, however, goes much wider than that. A letter pleading specifically for all three of these amendments was sent to the Government in November last year, signed by numerous religious groups, including the Hindu Council UK, Sikhs in England, the Jain Network, the Muslim Council of Great Britain, the Fellowship of Independent Evangelical Churches and many other Christian groups. These are the very groups that the Government intend should be protected by paragraph 2. These are the ones whose religious liberty is now at stake. If we get this wrong, these are the ones who will have to pay the legal bills to defend themselves in court.
The religious groups, particularly the Church of England and the Roman Catholic Church, have made representations to the Government on this issue since the Bill was published in April last year. Until two weeks ago, the Government denied that paragraph 2 caused any problems and refused to budge. Now, at the 11th hour, they have admitted that there is a problem and have tabled Amendment 99A. It is a slight improvement, but they still have not got it right. For a church post to be exempt, paragraph (b) in Amendment 99A requires proof that the post exists to promote or explain the religion. The Church of England briefing that we all received last week says that paragraph (b) leaves,
“an unacceptable amount of legal uncertainty”.
The briefing states:
“Although Ministers may say that ‘exists to’ does not mean ‘exists only to’, our legal advice is that that does not reflect the natural meaning of the words and that [subsection] (b) as drafted would require promoting or representing the religion, or explaining its doctrine, to be the defining characteristic of the job. That is highly problematic because many roles in the Church of England that involve promoting or representing the religion could not simply be described as ‘existing’ for such a purpose. Many posts require their holders to carry out multiple functions, some of which would involve promoting or representing the Church, while other functions of the same post would not”.
The briefing concludes that the government Amendment will leave the churches worse off than under existing law.
This is very serious. We cannot accept the government Amendment. We have been forced into the position of having a vote at Committee because of government Amendment 99A. The doctrine of pre-emption means that I could not bring my own amendments back at Report if Amendment 99A went through today. We must vote to decide the issue now. I wish the Committee to consider all three of my amendments as a group. They are a package. They seek to maintain the status quo by taking out the changes inserted by the Government. Amendments 98 and 99 would remove the new proportionality tests. Amendment 100 would remove the new definition of organised religion. Amendments 99 and 100 are therefore consequential on Amendment 98. The Minister may take a different view on what is consequential. I am sure that she will explain her view when she speaks. For my part, I invite the Committee to regard Amendments 98, 99 and 100 as a package and to vote accordingly.
The other package on offer today is the Government’s Amendment 99A. Due to the fact that it offers an alternative definition of organised religion from the one already in the Bill, it also requires Amendment 100 to go through. It seems a little complicated, but a single Division will decide the matter: if the Committee supports Amendment 98, it is rejecting Amendment 99A; if the Committee rejects Amendment 98, then the Government get their way and Amendment 99A goes into the Bill.
My package of amendments represents the legal status quo, which is supported by the Church of England, the Roman Catholic Church and others. The Government’s package represents a change in the wording of religious exemptions that is not supported by the churches. I beg to move.
My Lords, with permission I will speak to government Amendment 99A, but I will of course respond to all amendments at the end of the debate. Amendment 99A revises the definition of employment,
“for the purposes of an organised religion”,
in paragraph 2(8). This provision has already been the subject of much debate in both this House and another place. Our amendment seeks to address concerns that have been expressed to us by the churches and others about the terms of paragraph 2(8). I have not tabled this Amendment because I believed that there was a problem with the original drafting. However, having listened carefully to the debate in this House and to representations from many members of the churches, we recognised that there were concerns about the need for further clarification. That is precisely what this amendment seeks to do—to clarify, not to change.
The definition in paragraph 2(8) was not tinkering; it was introduced because responses to the consultation on the Government’s proposals for the Bill highlighted some confusion about when the existing exceptions can lawfully be used. We also received examples of cases where one of the existing exceptions—Regulation 7(3) of the 2003 regulations—appeared to have been misused, such as in relation to the finance director of a church.
The Government’s intention is not and never has been to narrow the scope of the existing exceptions, as the Solicitor-General made clear on a number of occasions in another place. Paragraph 2(8) is designed simply to reflect how my noble friend Lord Sainsbury of Turville described the scope of Regulation 7(3) when replying to the debate on the 2003 regulations in this House on 17 June 2003. He said:
“When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion”.—[Official Report, 17/6/03; col. 779.]
Clearly, many people, including some noble Lords, remain unpersuaded that paragraph 2(8) reflects this description. They maintain that it narrows the scope of the existing exceptions. In particular, they are concerned that it does not cover people employed by churches in representational roles and could even rule out most priests because of the amount of time that they may spend on activities that do not directly involve ritualistic or liturgical practices, for example. That point was well made by the most reverend Primate at Second Reading.
Ministers have listened to those concerns and Amendment 99A seeks to address them. The wording of paragraph 2 of Schedule 9 reflects very closely that used by my noble friend Lord Sainsbury to describe the very narrow range of employment covered by Regulation 7(3) of the 2003 regulations. I should explain that,
“for the purposes of an organised religion”,
is a significantly narrower expression than,
“for the purposes of a religious organisation”.
A religious organisation could be any organisation with,
“an ethos based on religion or belief”.
That is the expression used in paragraph 3 of Schedule 9, which allows, for example, a care home run by a religious foundation to require employees to be of a particular religion or belief in certain circumstances. However, employment,
“for the purposes of an organised religion”,
means a post, such as a minister of religion, involving work for a church, synagogue, mosque or temple. Ministers of religion are clearly in employment,
“for the purposes of an organised religion”.
To remove any shadow of a doubt, the revised definition that we are proposing refers to them explicitly. The words “wholly or mainly”, which it was claimed necessarily implied some kind of arithmetic or quantitative test, have been removed.
The small number of posts outside the clergy to which paragraph 2 applies are those that exist to promote or represent an organised religion or to explain the doctrines of the religion. I should like to clarify that this does not mean that the post must involve only one or more of those activities, but one or more of them must be intrinsic to the post. By “representing” the religion, we mean acting or speaking for, and with the authority of, those in leadership within the religion. We therefore intend senior employees with representational roles, such as the secretary-general of the General Synod and the Archbishops’ Council of the Church of England, to be within the definition. A further example is that of a senior lay post at the Catholic Bishops’ Conference charged with acting on behalf of bishops when contributing to public policy developments. These are both roles where the emphasis is more representational than promotional. There will be similar such roles in other organised religions. An example of a post that exists more to promote the religion is that of a missionary working for a church in this country. A church youth worker who primarily organises sporting activities would be unlikely to be covered by the exception. However, a youth worker whose key function is to teach Bible classes probably would be covered, because explaining the doctrines of the religion would be intrinsic to the role.
Because the exception applies only to a very narrow range of posts, all roles will need to be closely examined to determine whether or not they fall within the scope of the exception. An organised religion that applies in relation to a role a requirement related to sexual orientation, for example, must be prepared to justify this on a case-by-case basis. Whether or not a particular role exists to promote or represent the religion or explain its doctrines will depend on the purposes of the role and the nature of the work that it involves.
It is certainly not our intention that the exception should apply to employees such as administrative staff, accountants, caretakers or cleaners. Whether or not an applicant for the job of church bookkeeper is, for instance, married to a divorcee should not be a reason not to employ the person. In addition, the exception would not apply to most staff working in press or communications offices, although senior and high-profile roles within such offices that exist to represent or promote the religion would probably be within its scope. The revised definition that we propose also covers a case where a post to which the exception applies has just been created and the first person to hold it has yet to be appointed.
Amendment 99A would provide more clarity and greater legal certainty about the scope of the exception—for organised religions themselves, for the people whom they employ and, in the event of legal proceedings, for the courts. I commend it to the Committee.
I will add some information about the reasoned opinion. Last November, the European Commission delivered a reasoned opinion to the Government on two aspects of our implementation of the European directive underlying the 2003 sexual orientation regulations. We had previously satisfied the Commission’s concerns over a number of other aspects of our implementation of the directive. The reasoned opinion was apparently disclosed by the Commission, without the Government’s prior knowledge, and Mark Harper in another place referred to it during the Bill’s Report stage. We have asked the Commission to explain this apparent unauthorised disclosure. I take this opportunity to make it clear that we have not, as asserted by Mark Harper and others, informed the European Commission that the Bill will amend Regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, so as to bring this into line with the directive. That was incorrectly stated in the reasoned opinion.
Issuing a reasoned opinion is one of the formal steps in infraction proceedings, which the Commission can bring where it considers that a member state has incorrectly transposed a directive. The generally agreed position is that reasoned opinions are confidential between the Commission and the relevant authorities in the member state concerned. If the Commission is not satisfied with the member state’s response, the case could be referred to the European Court of Justice. That is why I cannot say any more about the reasoned opinion in question, to which we will be responding in due course. However, I thought that it was important to set out the Government’s views on that issue.
My Lords, I want to explain why I shall be supporting Amendments 98, 99 and 100, moved by the noble Baroness, Lady O’Cathain, in preference to Her Majesty’s Government’s Amendment 99A.
This debate has the potential to be one where the competing arguments pass each other like ships in the night. We do not want it to be like the radio exchange recorded between an American naval ship and Canadian authorities off the coast of Newfoundland in 1995. The Americans said, “Please divert your course 15 degrees to the south, to avoid collision.” The Canadians replied, “Recommend you divert your course 15 degrees to the north, to avoid collision.” The American captain said, “This is the captain of a US Navy ship. I say again divert your course.” The Canadians replied, “Negative. You will have to divert your course.” Americans: “This is the aircraft carrier USS Missouri. We are a large warship of the US Navy with heavy weaponry and nuclear warheads. Divert your course now!” Canadians: “We are a lighthouse. Your call.” It is true.
It is important, as we make up our mind on the choices before us, that we are clear what they are. Are the disagreements ones of principle or are they about how best to reflect agreed principles in how the Bill is drafted? Arguing about drafting may be less exciting than arguing about principles, but we are a legislative Chamber. When important issues concerning individual rights and religious freedom are at stake, we have a duty to ensure not only that the principles are right, but that the drafting is clear.
There are those who struggle with the concept of allowing any exemptions for religious organisations from provisions relating to discrimination in the field of employment. But the argument is simple. Religious organisations, like all others, must be able to impose genuine occupational requirements in relation to those whom they serve. There are many jobs that you can do for the Church of England without necessarily being an Anglican or indeed a Christian. But for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case.
Even within religious organisations, certain requirements about marital status or personal conduct may be different between roles. An obvious example is that the Roman Catholic Church insists that priests and bishops are male and unmarried. The Orthodox Church has the same requirements, except that it will ordain as priests, although not bishops, those already married. The Church of England allows women to be priests but not bishops. We allow both to be married. We also impose restrictions on marriage after divorce, cohabitation and same-sex relationships. These touch on matters—gender, marital status and sexual orientation—that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent “protected characteristics” that can form the basis of discrimination claims.
By contrast, churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do; between what we believe and how we conduct ourselves; between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. Noble Lords may believe that Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics. But if religious freedom means anything, it must mean that those are matters for the churches and other religious organisations to determine in accordance with their own convictions. They are not matters for the law to impose. Start down that road and you will put law and conscience into inevitable collision, and that way lies ruin. As Edmund Burke said:
“Bad laws are the worst sort of tyranny”.
I am not determining a point of law, but seeking to restore tranquillity and a spirit of moderation, magnanimity and meeting the other half way. Aristotle, in his Nicomachean Ethics, says that magnanimity is that which is just and sometimes that which is better than justice: it corrects the law when that is deficient because of its generality.
In all that they have said, Her Majesty's Government have sought to provide assurances that they do not want to go down the road of putting the law and conscience into inevitable collision. I welcome that. However, if that is the case, the onus is on Her Majesty's Government to demonstrate why any narrowing of the provisions in existing legislation under the Sex Discrimination Act 1975 and the 2003 sexual orientation regulations needs to be made. There is no doubt that paragraph 2 of Schedule 9 to the Bill would constitute a significant narrowing of the present law, for the reasons that I set out at Second Reading. When I heard the Leader of the House describing what may be exempt, I said to myself, “My gosh, here comes a barrage of endless tribunals”. The Government’s Amendment 99A goes some way, but not far enough, to meeting the objections.
When your Lordships' House debated the 2003 regulations, the Minister of State at the time, the noble Lord, Lord Sainsbury of Turville—whom the noble Baroness has already quoted—said that,
“we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. The words on the page reflect our intentions”.—[Official Report, 17/6/03; col. 779.]
The wording of Amendment 99A is either a departure from those intentions or fails to satisfy them. We have gone from posts outside the clergy, including those who exist to promote and represent, to posts that exist only to promote or represent.
Again, the question is about preserving the status quo and about not introducing legal uncertainty. The 2003 regulations did not impose a proportionality requirement. That was a deliberate policy decision on the part of Her Majesty’s Government. Now, on the eve of this debate, it is suddenly being suggested that the words in the Bill are needed to avoid legal challenges from the European Commission. This is a very puzzling claim when Ministers have insisted all along that the Bill does not narrow the exemption provided in the 2003 regulations. It is hard to see—
I am very sorry to interrupt the most reverend Primate, but what he has just said is not the case. The opposite is what the Minister has said, that this was not done in any way to comply with the EU Commission’s opinion. This was magnanimity shown to the church.
I am still puzzled, given that in 2004 the Government successfully defended the compatibility of the regulations in European law against a challenge from Amicus in the High Court. The judgment was given on 26 April 2004, paragraphs 88 to 128.
Noble Lords are entitled to some explanation as to why the unpublished opinion of officials reached in private in Brussels is to be preferred—that is my view—to the Government’s own previous view that was sustained by a High Court judge after all the arguments had been tested in open court and a judgment produced running to some 58 pages. In the High Court, Her Majesty’s Government had argued that it would not be right for courts or tribunals to make judgments about questions of doctrine. Her Majesty’s Government were right to take the view in 2003, and there is no good reason for them to take a different view now that they have the High Court judgment on their side.
So why are Her Majesty’s Government now dissatisfied with their own very recent handiwork? Where are the examples of actual abuses that have caused difficulties? Where are the court rulings that have shown that the law, as it is, is defective? As they say, “If it ain’t broke, why fix it”? The truth is that there are none because the status quo has been working perfectly satisfactorily. The earlier balances were struck by Parliament very carefully. The right course is to leave them exactly as they are. That is what Amendments 98, 99 and 100 will achieve.
Her Majesty’s Government’s Amendment 99A would introduce fresh legal uncertainty with unnecessary arguments over whether “exists…to” means that promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary components. Noble Lords know where I am going; principles matter and drafting also matters. For this reason, I support the amendments of the noble Baroness, Lady O’Cathain.
I have added my name to Amendments 98, 99 and 100. In the same way as the noble Baroness, Lady Campbell of Surbiton, I support religious freedom, which is why I supported Amendment 119A and I now support these amendments.
In the exemptions provided by the Employment Equality (Sexual Orientation) Regulations 2003, regulation 7(3), which is highly relevant to today, did not include the express requirement of proportionality, although regulation 7(2) did require it. Those exemptions, including the absence of proportionality, were challenged in the High Court in the Amicus case which has just been referred to by the most reverend Primate. Not to have the requirement for proportionality was upheld by the High Court judge.
The introduction of the word “proportionate” in the two regulations inevitably changes the legal position. The word “proportionate” must mean something, and something more than the previous position because it was not there before—despite what seems to be the erroneous view of the Government, that this is exactly the same. Once you put a new word in it must be different. If this paragraph is challenged in the courts as a matter of interpretation or construction, a judge would look at the words in regulation 7(3) of the 2003 regulations and at the introduction of the word “proportionate” and be bound to find that there was a change.
The effect would be to cause major problems for churches. There might be a situation where a church met the organised-religion test but could still lose a legal challenge in a particular case if a litigant argued that their action was disproportionate in his or her situation. That is not just my opinion—although I was once a judge, I do not see myself as an expert—but I have been provided with very important advice by James Dingemans, Queen’s Counsel, which supports exactly what I have just said. He has also raised an interesting point about the status of celibacy of priests of the Roman Catholic Church and whether under the new paragraphs of Schedule 9 the church might be challenged as not being a proportionate means of complying with the requirements of that church to have celibate priests. It is a very interesting idea. I do not know whether anyone from the Roman Catholic Church feels like expressing a view on that but it is raised again by James Dingemans, Queen’s Counsel. This is a controversy stretching over nearly 1,000 years so these are not uncharted waters, but it would be odd if it came up under the word “proportionate” in the Equality Bill.
The noble Baroness, Lady Royall, quoted the noble Lord, Lord Sainsbury of Turville, who was speaking to the 2003 regulations. Perhaps I may add to her quotation of the noble Lord because he said in relation to the exemption in Regulation 3 admitting the test of proportionality:
“we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts”.—[Official Report, 17/6/03; col. 778.]
The proposed rewording in this Bill is likely to have just the effect the noble Lord wished to avoid in 2003.
I turn to government Amendment 99A. It continues to restrict the rights of religious groups to employ those who will be in sympathy with them and their strongly held religious convictions. However, through the Minister, the Government say that Amendment 99A clarifies the position. In my view, it does exactly the opposite for this reason: one has to ask what does the word “exists” mean? Is it intended to require the person selected to fill a post which solely exists to promote or represent the religion or partly exists for that purpose? The Minister says that it partly exists. I am not certain that that is the way the present wording will be seen if the matter gets to court.
I shall give an example. The Minister spoke of a youth worker and so shall I. A youth worker may be employed to teach Sunday school but he may also be employed to drive the parish bus for the youth group. If the parish employs him to drive and driving is as important in one sense as teaching on a Sunday—he teaches one day a week but drives for three or four days a week—is he in an employment that exists for the purpose of promoting and so on, according to the words of Amendment 99A? I think there is a real doubt and, therefore, a real possibility that the use of the word “exists” might precipitate court proceedings, which would be an expensive and regrettable position and which quite clearly the Government do not intend. In my view, it imports uncertainty and may very well inhibit flexibility in the use of the employee by those who are afraid that by employing someone with more than one job they may be open to court proceedings.
I also had a very touching letter from an organisation called Ellel Ministries, which reads:
“We are writing from Ellel Ministries International to ask if you’d kindly consider the implications of the Equality Bill to a Christian ministry such as ours. We have four centres, we help people in their time of need, we provide free Christian counselling, in the form of healing retreats, to the suicidal, the depressed, the traumatised, the abused and to the broken. If this Equality Bill became law, we’d be unable freely to employ people who are best qualified to bring the appropriate level of help to those in need”.
It does not sound as though this is primarily Christian teaching. This is primarily helping, in a Christian organisation, those who are suicidal, depressed or traumatised, and I suspect that they are right, that they would not be able to have someone of their particular religious persuasion.
This is probably a commendable effort by the Government to clarify what has happened, but it has not had the effect of clarification. It will have, possibly unintentionally, the effect, if it is passed, of restricting the rights of religious groups to work with those of the same views, holding the same religious convictions, and it will, if passed, create the confusion it seeks to avoid. Therefore I, too, support Amendment 98.
My Lords, I want to widen the debate somewhat, because it touches the very roots of democracy in society. It has been a fundamental principle of the democratic state, certainly over the last 100 years, that independent corporations within the state have a freedom and enjoy a freedom. Churches and faith groups are independent corporations. Their life does not spring from the state, but from within their own communities. Freedom, for them, means the right for their members to follow the rules of their faith, provided it does not offend decency or public order.
Even in a different age, less democratic, more intolerant than our present age, this principle was observed. In 1795, the narrow Protestant Parliament of Ireland gave £8,000 to the Catholic Church to build the seminary at Maynooth. The English state, when the Union of Parliaments occurred, continued with this grant, which rose to about £26,000 a year, a lot of money in the early 19th century. The Bill alters all this and we are in grave danger of using the ideology of equality to question the demands that faith communities make on their pastors and followers.
Traditionally, faith schools—the essence of faith in many cases: the Roman Catholic Church almost bankrupted itself to create its schools—demanded that their staff followed the practices of the faith that the school represented. This was certainly the case when I was briefly in charge of a parish in the early 1960s, when teachers in local schools were expected to respect the faith that the school represented and on which the faith had spent large sums of money. The Bill seems to me to restrict this right to employ members of their creed and those who practise their moral code only to those who are pastors, priests or teach doctrine. I think it ought to extend to many more people, particularly teachers in schools, and not be restricted to that narrow area.
I return where I began: that hard-fought right of independent corporations to express themselves is an important element of what we mean by freedom in the state. Dictators always restricted these rights of churches, trades unions and more, and this, in a funny way, is what we are doing at the moment in the interests of ideology.
In France, savage anticlerical legislation was passed in 1905. The result was 50 years of conflict—fifty years in which charitable activities were restricted—and we see a faint sign of how that could occur with us in what has happened to the Catholic Children’s Society. It is a paradox that in the early 19th century the narrow, intolerant Protestant minority was prepared to build a Catholic seminary and that our generation, which is supposedly generous and understanding, is actually restricting the rights of church bodies and inaugurating conflict that can only do harm. I beg noble Lords to support the amendment.
My Lords, these amendments deal with the requirements which an employer with a religious ethos may demand of his employees. Clearly, the Bill does not intend that an employer with a religious ethos should be able to require that all employees, irrespective of the job for which they are employed, must be adherents of the employers’ religion. It does, however, provide for certain exceptions. It is clear that the Government’s amendments in this group are intended to set out clearly that an employer may not insist on such a requirement for most jobs, only for those that relate directly to the purposes of organised religion. Amendment 99A sets this out very clearly, and I support it; it clarifies wording that is not as clear as some of us would like.
I oppose Amendments 98 and 99. The Bill allows an employer with a religious ethos to employ people with protected characteristics only if it is,
“a proportionate means of complying with the doctrines of the religion”,
“a proportionate means of avoiding conflict with … a significant number of the religion’s followers”.
The amendments, however, seek to remove the words “proportionate means”. This is not acceptable. It is an attempt to interfere with the rights of others, which the Bill intends to protect. It is unfair, unjust, and more likely to lead to conflict than anything else. Do the movers of the Bill really see any virtue in being disproportionate? Of course not. The Government have attempted to meet concerns that have been voiced by certain religious groups, and I therefore hope that they will insist on maintaining the wording.
My Lords, noble Lords might recall that at Second Reading and on the second day of Committee I expressed my fear that the Christian church was being marginalised in this country. I believe that the Government understand this, hence their own amendment, but like other Christians I believe that their stance does not go far enough. I shall therefore vote for Amendment 98, moved by the noble Baroness, Lady O’Cathain, and supported by the right reverend Prelate the Bishop of Winchester and my noble friend Lord Anderson. If the amendment fails to be accepted, I will not oppose the Government’s amendment simply because half a loaf is better than no bread at all. It was my Christian faith that guided me into the trade union and political movements and that led me to be for the abolition of the capital punishment long before it was abolished in this country. My support for my Labour Government is second only to my Christian faith. The standards and morals of the Christian church makes this country a much better place, and I shall always oppose any measures that seek to marginalise the Christian church.
I hope in this debate that I am the lighthouse and not the aircraft carrier, but we will see. Before I come to the law, I want to mention the episode of the noble Lord, Lord Sainsbury of Turville. I think it was I who pressed him because I was concerned that the then regulations were too broad and would allow a religious body to discriminate against a lesbian cleaning lady. That concern led to the judicial review in the Amicus case and Mr Justice Richards, as he then was, giving a strict interpretation of broad regulations indicating that they could not be read in a loose way. I say that to avoid some misunderstanding which has been expressed about that case and his judgment.
Amendments 98 and 99 would remove the principle of proportionality. That is a general principle of European law by which the United Kingdom is bound. The amendments would remove that principle as regards differences of treatment made to comply with the doctrines of a religion. As has been said, there are a number of exemptions for religious requirements in paragraph 2 of Schedule 9 relating to sex, marriage, sexual orientation and so on. For example, in certain circumstances it is permissible, for the purposes of religious employment, for a difference of treatment to be made in accordance with a requirement either not to be of a particular sex or relating to sexual orientation—quite right, too.
Under the Bill, these exemptions must be applied in a manner that is a proportionate means of complying with the doctrines of religion. Removing proportionality here, as these amendments seek to do, would mean that any religious organisation could implement the requirements without a sense of proportion and in breach of the general principle of European law. In other words, the organisation could lawfully use its powers in a way that was excessive. That would inevitably lead to complex and costly litigation, as happened in the Amicus case, in our and the European courts, the outcome of which would be to require the principle of proportionality to be applied as part of the law of the land, whatever the movers of these amendments and the seven Bishops now present may say. It is the law under European law and it is the law of the land. Proportionality is required whether they like it or not.
In my view—James Dingemans QC takes controversial views on some of this in other contexts, with great respect to him—Amendments 98 and 99 are outwith the scope of Article 4(1) of the EU framework directive, while Amendment 100, in opposition to government Amendment 99A, would also clearly be incompatible with European Union law. In view of the way the debate has gone, it is important to have regard to what is meant by proportionality. The European principle of proportionality is at the heart of the Bill. It requires a fair balance to be maintained between rights and freedoms where they compete or conflict with each other. The principle of proportionality is inherent in European Union law, European convention law and our own law. It applies to our legal system via the Human Rights Act and specific legislation such as in the Equality Bill. That principle is allied to the European principle of legal certainty.
Would the noble Lord explain how other members of the European Community—France, for example, and Germany to some extent—restrict teaching in their faith schools to members of the faith and the practice of the faith? How have they avoided the European Court?
I am not addressing the issues about faith schools at this stage and it is confusing to do that. I promise that we will come to that. But I am keen, and it is very important, to stick to the issues with which we are now concerned. Faith schools are another difficult matter to which we will come later. In addition, the European principle of legal certainty requires that civil rights and obligations, such as the right to equal treatment without discrimination, be clearly stated and that the exceptions to the rights also be clearly stated so that the law is intelligible and accessible. We, and the Government, have to try our best to meet the principles of proportionality and legal certainty as law makers.
A restriction on a right or freedom has to be a proportionate interference. There must be a reasonable relationship or proportionality between the means employed and the aim pursued. The European courts and our courts have made it clear that the means used to impair the right of freedom must be no more than is necessary to accomplish the legitimate aim. Here, we are concerned with the fair balance required between the fundamental right to respect for one’s private and family life without discrimination, and the fundamental right to freedom of thought, conscience and religion. Those rights are protected by Articles 8, 9 and 14 of the convention and by EU equality law.
A core aspect of self-determination and individual autonomy is the protection conferred by Article 8 of the convention on sexual relations and what are called “proclivities”, sexual orientation and identity, all of which are part of the core aspects of an individual’s private life. For example, decades ago the archaic law treating homosexual conduct as an offence, even if conducted in private and between mature and consenting adults, was held to be contrary to Article 8, and we had to change our law.
The Bill protects gay and lesbian individuals against discrimination. But, like the regulations it replaces, it includes necessary exemptions to accommodate the fundamental right to freedom of thought, conscience and religion, exceptions well recognised in the EU framework directive. In other words, the right to be protected against sexual orientation discrimination is not absolute. The same applies to freedom of conscience and religion. There are no absolutes here.
The Strasbourg court has made it clear that the controlling doctrine is that of proportionality. A classic example was the case about the bar on homosexuals in the Armed Forces. Religious and other beliefs, and convictions, are part of the humanity of every individual, including atheists, agnostics, sceptics and the unconcerned. It is only the manifestation of religion or belief that may be subject to prescribed limits. That reflects the fact that the way that beliefs are expressed in practice is what can impact on others.
Despite the protestations made by senior clerics, including those on the Benches here, I believe that the measures in the Bill accommodate the reasonable needs of the churches and other religious organisations to manifest their beliefs and to practise their faith in accordance with their beliefs, subject to the overriding requirement of proportionality. I find it astonishing and deeply depressing that the right reverend Prelates should find the principle of proportionality—a principle which is deep in Christian ethics—to be a principle to be removed from this Bill. I am, frankly, appalled that that should be the position.
Of course there is a difference in the wording. But in each case, under the regulations and now, the European principle of proportionality has to be complied with. Therefore, it is highly beneficial that the law now makes it clear in the current wording, which is why the principle of proportionality is clearly spelt out. It does not change anything in existing law, since it was always the case, as the Amicus case demonstrates, that any exception must be strictly construed in accordance with European law.
We have been here before, in 1998. I am not sure who else remembers what happened during the passage of the Human Rights Bill. At that stage, amendments were approved in this House, as could happen today, to give specific protection to religious beliefs because of concern among the churches that the Bill might force them and their members to engage in acts contrary to their religious principles, for example in relation to whom they would marry in a church or whom they would employ. Those amendments, as were subsequently shown, were wholly inappropriate and unnecessary. By a concession made to the churches, however, Section 13 of the Human Rights Act was included, which states:
“If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right”.
Those amendments were moved by me to get religious toleration an exclusion from the very sort of position that the noble Lord is talking about. I withdrew the amendment because an arrangement had been made with Lambeth Palace. I never saw the arrangement; I do not know what it was, but I withdrew the amendment, so it was never in fact enacted.
My memory is normally terrible, but I think what happened was that the House did approve them, the Commons disagreed and then by compromise Clause 13 was put in. Perhaps that is beside the point at the moment. The point I am making is that all of this happened then. A concession was made, there has been no subsequent case in which the concession was ever needed, because in practice the Human Rights Act did not affect the churches, but the same kinds of concerns were then expressed.
The Equality Bill gives very strong protection to the rights and freedoms of the churches and religious organisations and, if I can take up the word used by the most reverend Primate the Archbishop of York, I agree with him that magnanimity is of the essence. The Government have in fact, although you would not think so from some of the responses, been magnanimous in the way that they have included Amendment 99A. I am not going to go over the ground on this amendment, but I would like to explain about the framework directive because it is really important. UK law has to implement the directive and it is important for the Bill to ensure full compatibility. In my view, it does so if it is amended as the Government propose and if its present text is approved.
The Bill and Amendment 99A maintain a fair balance between conflicting rights and freedoms and meet the obligations under the directive. In the Amicus case, the High Court held that Regulation 7(3) of the old regulations does not interfere with rights under Article 8(1) of the convention and that it strikes a fair balance. As I have explained, however, the problem about Amendments 98 and 99, which I very much hope will not be approved today, is that they overreach in seeking to widen further the rights of churches and religious organisations to discriminate because of someone’s sexuality. They are not compatible—I would love to know whether the Minister and her legal advisers agree with this—with the UK’s obligations under the directive.
You will be glad to know that I am not going to quote the directive. It goes into great detail. The current wording reflects current law. The Government amendment is even clearer and faithfully reflects the scope of the exception currently in the old employment regulations. I am glad that the Minister has clarified that Amendment 99A would not permit sexual orientation discrimination against those involved in youth work. I consider that Amendment 100 would allow, although that may not be the intention, arbitrary and disproportionate discrimination by religious organisations and therefore should not be accepted.
The more I listen to the noble Lord, the more I find, as was the case when I listened to the noble Baroness, Lady Turner, that I am glad that my name has been added to the amendments tabled by the noble Baroness, Lady O’Cathain. It simply is not true to say that those on this Bench have no interest in or respect for proportionality, and of course that is engaged in all this. I have a vivid memory of conversations I had in my previous post with a Muslim cleaning lady in a voluntary aided church school in the middle of Stoke-on-Trent. She was entirely properly engaged there and, rather intriguingly, she was extremely impressed with the Christian religion as she found it enunciated in the school that her children attended. But it was entirely right that she should be an employee of the school in that role.
It is of course true that proportionality is a requirement in European law, but as I understand it, the 2003 regulations, as Her Majesty’s Government successfully argued in the Amicus case, themselves strike a proportionate balance and there is no need for the legislation itself to employ the term in order to achieve proportionality. Indeed, as the noble and learned Baroness, Lady Butler-Sloss, so carefully drew out—it is a privilege to be among those who support the amendments with her—adding the word “proportionate” now is likely to change the interpretation that the courts will make of this legislation. It will require the courts to inquire into the precise nature of the particular religious doctrines in order to discover what is the minimum necessary to comply with them. I am advised that the existing 2003 legislation already complies with EU proportionality requirements without giving rise to legal wrangles of this kind about doctrines. That seems to be common sense and sounds to me, although I am not a lawyer, like responsible law.
The question that has not been adequately answered is why the Government, having said all along that they are consolidating and replicating—we have heard that word this afternoon—find themselves introducing this fresh material when, again so far as I understand it, they won the case in the High Court which alone could justify bringing the word “proportionate” into the sections that Amendments 98 and 99 seek to remove it from, and thus go down the road of Clause 2(8) as it appears in the Bill. As others have said, the beauty of Amendments 98 and 99 is that they restore the status quo, which we believe to be entirely defensible. I am not convinced by the noble Lord’s language about the magnanimity of the Government. On the contrary, I reacted with a real pang of regret when the Minister said that she still sees no problem with Clause 2(8), but perhaps it was important to “clarify but not change”, to use her words. However, it is precisely because the subsection is so profoundly objectionable to us that the only way forward is its removal, and here I bring into play the considerations enunciated by the noble Lord, Lord Pilkington. I shall not go into the detail so beautifully laid out by the noble and learned Baroness, Lady Butler-Sloss, which makes it clear why we reckon that government Amendment 99A will make for a great many more problems than removing the amendments altogether.
Is the right reverend Prelate aware that Article 4(1) of the framework directive states specifically that the characteristic in question must constitute,
“a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate”?
What is wrong with putting that obligation expressly into the Bill so as to conform fully with European law?
Obviously I am aware of the material from which the noble Lord has quoted, but it remains my contention that, granted that the Government’s primary intention as I understand it is to consolidate legislation into a single Bill, to draw in a fresh use of that word at this point is likely to do a great deal more mischief than good. That said, it would be rash—
I hesitate to interrupt the right reverend Prelate again, but surely the word “proportionate” is already implied by European law. Therefore, for our statute to use the same word is merely accepting a European legal doctrine. Where is the freshness?
The freshness is because the Government have all along said, although we have not accepted it, that they are consolidating and replicating, rather than narrowing, the legal provisions under which we act.
It is important at this point in the debate to revisit two areas. The first is why these questions are of such importance to churches, religious organisations and charitable organisations with a religious ethos. For centuries, religious organisations and churches have employed lay people in senior administrative and pastoral roles. The question that the noble Baroness, Lady Butler-Sloss, raised from Ellel Ministries is an important one—namely, to check that such organisations would not fall foul of this legislation if they were seeking to employ people necessary for the working of their organisation. That was the fundamental point made by noble Lord, Lord Pilkington. Churches need to be able to appoint members, either of their own particular church or of some other, who are of good standing and whose ways of living and behaving advocate and credibly represent, rather than undermine, the Christian faith and the objectives of the organisation concerned—not, as I have already said in relation to the word “proportionate”, cleaners or people doing the books or whatever, but people representing those organisations according to one bullet point or more on their job description.
My anxiety is that, notwithstanding a huge amount of work done by the Roman Catholic Church, the Church of England, the Evangelical Alliance and a range of other organisations, we still seem not to be getting across the sheer reality in so many churches. With youth workers, for instance, many a parish in my own diocese employs lay people as part of the paid staff under the leadership of the minister to work with students, families and children. Listening to the noble Baroness just now, I had the vision either of a whole new department of state responsible for vetting all these contracts to see whether these people were a genuine occupational requirement, or of the churches being burdened with endless lawsuits of one kind or another. I have a lay assistant, not a chaplain, who represents me in a whole range of ways; his job description notes that he does so. Is it not entirely reasonable that he should be a Christian of good standing whose life tallies with his Christian profession and who is therefore able to represent me, not someone living in some quite other way so as to make his representation impossible and to undermine my own activity?
Churches, religious organisations and charities have senior lay staff, one element of whose responsibility is to represent the convictions, character and vision of their organisations. I was glad that the noble Baroness mentioned some of those. It is a matter of great importance to us. The same is true of the senior staff of the Evangelical Alliance. An English diocese in the Church of England has a diocesan secretary—the head of its diocesan administration—who is almost always lay. It would be impossible for us to work with that woman or man, representing us widely in a whole series of contexts—
I am sorry to interrupt the right reverend Prelate, but the whole tenor of his speech seems to be in support of the Government’s amendment. I cannot at the moment distinguish his position from what has already been made clear by the Government about the kind of categories that will be included—the very categories that he is mentioning.
That is not the point, as I and others see it. It seems precisely that, just as the noble and learned Baroness, Lady Butler-Sloss, noted, this language of “exists” threatens to narrow rather than to replicate the existing law and threatens to lead us, because there are people who want to bring cases against churches to test all this out, into defending an utterly unnecessary series of legal actions. We are as aware of the question of proportionality as anyone else is and we know the background law. That is my response.
My anxiety is that the kind of things that I have been speaking of make paragraph 2(8), as we have been saying for months, simply an unrealistic nonsense. The situation is little improved by government Amendment 99A. The Government are quoted in paragraphs 175 and 176 of the Joint Committee on Human Rights scrutiny report as saying that they are confident that they understand the legitimate needs of the churches in this matter, but their own amendment undermines that still further. It is for that reason that I ask the Committee to support Amendments 98 and 99.
Does the right reverend Prelate accept that, even if this Committee passes the amendments proposed by the noble Baroness, Lady O’Cathain, the reality is that he will be governed and restrained anyway by the framework directive, so he will be back straightaway in the position that the Government’s amendment produces?
No. We have heard that point argued on different sides of the Committee by eminent lawyers and I am by no means convinced that the noble Lord is accurate in what he has said. If he were, the points made by the noble Lord, Lord Pilkington, who is no longer in his place, would be exactly exemplified.
My Lords, I have thought long and hard about this matter and I wish to share a short and general thought on the issue. Equality, human rights and freedom have become in themselves a religion or a philosophical belief—almost organised, in fact, given the number of bodies that exist to enforce them. We have, therefore, a clash between two sets of religious or philosophical beliefs and I see no reason why one should be superior to the other. Indeed, equality, freedom and human rights have grown out of the older established religions. To prevent the older established religions from continuing to teach their principles will, in the end, produce a generation that cannot see the point in equality, freedom and human rights, the justification for which lies originally in religion.
Since we are, in my view, dealing with clashes of philosophical beliefs, there is a danger for those who uphold equality, freedom and human rights—I, of course, am one of them—that this becomes like a juggernaut, crushing all other religions. Anyone who stands in the way gets the sort of treatment that reminds me of what took place when there were clashes between the organised religions a few hundred years ago. It behoves those who believe in equality and freedom to be magnanimous and tolerant and to allow other religions the same freedom that equality itself, and all that goes with it, has.
It is for that reason that I support the amendments tabled by the noble Baroness, Lady O’Cathain—with one other proviso. Court intervention in religious matters has not worked well. If, according to European law, we must be proportionate, writing that into the legislation is unnecessary because it is there anyway. However, the courts have great difficulty. I instance a recent judgment about a faith school where the noble and learned Lords of the Supreme Court—not always Lords now—admitted that it was a shame that the case had come to court and that what was being done was not at all appropriate. We ended up with a rather sad judgment, which flew in the face of the way in which Jews have defined themselves for thousands of years. The intervention of the court should be avoided if at all possible. It costs hundreds of thousands of pounds and may not be appropriate.
This is a case for magnanimity, tolerance and flexibility. Therefore, I urge your Lordships to support the amendments tabled by the noble Baroness, Lady O’Cathain.
My Lords, I rise to make a brief intervention. Over the weekend, I listened to the warning given to this House that today there would be a big issue that should merit our attention. The House is aware that, over the years, in religious matters, I have not played a part—never mind a major part. However, I was moved to reflect on this situation.
Many people in this House—and some make a declaration of it—are Christians, with beliefs and doctrines, and a life encompassed by a religious phrase. I confess that, at my age, I have been open to persuasion from a great many people and a great many causes but have never been moved to declare myself a Christian with a capital C. When I look at what Christianity is—its precepts and concepts—I subscribe to them. When I was younger, I was a Sunday-school teacher, which I enjoyed. When I joined the Royal Marines in 1943 and the man in charge said, “I now need to take down your religion,” I said that the only religion I could remember is the Congregational Church and that I was a member of the Boys’ Brigade. He said, “Right. You’re an OD.” I asked, “What’s an OD?”. An “OD” stood for “other denominations”.
I have gone through life not moved as obviously as so many people here, and in other places, are by these issues. When a Bill appears, people can see that there is an aspect to it that needs to be varied, words changed. I came to the Equality Bill not moved by a religious fervour, but moved by the kind of things that most people understand by a lack of equality in gender, economics and many other ways.
What the Government have been doing, defending and attacked for doing is listening to what has been said. It remains for the House to decide whether they are right or wrong. In a few minutes time we will go through the Lobbies.
I cannot recall that people in my former seat of Edmonton talk of little else but proportionality or things like that. Quite frankly, most ordinary people are not moved by the issues that are taking centre stage here. An hour ago, the Government and the Leader of the House were trying to get the wording as right as possible.
Amendment 98 states,
“leave out ‘application is a proportionate means of complying’ and insert ‘requirement is applied so as to comply’”.
Noble Lords might be able to understand the tautology there, but it is rather difficult for someone like me to do so. Amendment 99 states,
“leave out ‘application is a proportionate means of avoiding conflict’ and insert ‘requirement is applied so as to avoid conflicting’”.
We have preconceived ideas of where we stand in the political spectrum, but I believe that the Government are trying to give the House its best shot to deal with inequalities.
Reference has been made by more than one noble Lord to the briefs that they have received. I have not received those briefs, but I received briefing from the Humanist Association and other bodies. I respect those bodies and I read the briefing. The issue on which I received more representations than any other was Section 28. I received more than 500 letters on that. Out of courtesy I replied to all of them and said that I would listen to the debate and take note. I cannot believe that the issue we are discussing will arouse as much passion as Section 28. That issue, which was so big and aroused such strong feelings, was accepted and has faded, and the Government have done their best to move on.
As regards religious tolerance, I detect that certain words indicate that the Church of England and religious bodies and faiths feel that they are being attacked, undermined or not listened to. I do not speak for the Minister or for the Government, but, frankly, that notion is laughable and ludicrous. The Government are trying to do what they believe is right and are listening very carefully. The Minister will point out that the last thing this Government want is another fight with somebody else; they have enough on their plate and do not want any more. The Government deserve support for their attitude to the Bill, and will get mine.
My Lords, I am grateful to the noble Lord, Lord Lester, for taking us in his inimitable way through the wider complexities of European law and regulation. I should like to return to that.
Reference has been made to the reasoned opinion of the European Commission concerning the implementation in the UK of the EU equality and employment directives. I fully accept the assurance that Amendment 99A is not a response to that reasoned opinion, but is motivated by listening to the concerns of the churches and other faith communities and trying to meet them, for which I am grateful. However—there is always a “however”—there is a further sense in which the EU context is, I believe, both relevant and instructive. The only other two EU states against which infraction proceedings have been taken to date in connection with the employment framework directive and the equal treatment directive are Ireland and Germany. In Germany, concerns have been expressed by the churches which are very similar to those expressed in the Chamber today. In the light of those concerns, that part of the infraction proceeding dealing with the churches has been withdrawn for various reasons, the main one being that Germany, like many countries in Europe, has a written constitution with a self-determination clause for churches, and so the demands of the churches were deemed to be reasonable.
In the UK, we lack such a written constitution, which is perhaps something to be regretted. However, where we stand at present is that implicit in the law as it stands is an acceptance of such faith community self-determination. My problem with the Bill, and the amendment tabled by Her Majesty’s Government, is this—and I think it is to this that the noble and learned Baroness, Lady Butler-Sloss, and others have alluded—that it takes us yet a further step away from such self-determination and in the direction of state, court or tribunal determination in matters which touch the very heart of religious faith and life. It is for that reason that I welcome the amendments in the name of the noble Baroness, Lady O’Cathain, and I do hope that your Lordships will welcome them too.
I will just make one short observation. It seems from what has been said from the Benches opposite and from the noble Lord, Lord Lester, that we have a choice tonight—whether we walk in fear of the law of the Lord or the law of Brussels. I know which way I am going.
My Lords, that is a very interesting point at which to rise. I noted earlier the comments made by the noble Lord, Lord Davies of Coity, about his commitment to his religion over his commitment to his political party. As a Muslim I am quite concerned these days to talk about my commitment to my faith as opposed to my commitment to anything else because I may occasionally be seen as a security risk.
On Amendments 98, 99 and 100 tabled by the noble Baroness, Lady O’Cathain, or the alternative government Amendment 99A, we have heard addressed the definition of employment,
“for the purposes of an organised religion”.
Powerful arguments have been put forward by the noble Baroness, Lady O’Cathain, the most reverend Primate the Archbishop of York, and the noble and learned Baroness, Lady Butler-Sloss. As the law stands, where the employment is for the purposes of organised religion, an employer may apply a requirement for a person to be of a particular sex, or not to be a transsexual person, or make a requirement on the basis of the employee’s marriage or civil partnership status or sexual orientation, as long as the requirement is in line with a genuine occupational requirement,
“for the purposes of an organised religion”.
We believe that the Bill as currently drafted significantly narrows the scope of roles which would be included as,
“for the purposes of an organised religion”.
It does this by narrowing the definition of employment in this context to those roles which “wholly or mainly” involve,
“leading or assisting in the observance of liturgical or ritualistic practices of the religion,”
“promoting or explaining the doctrine of religion”.
There is a clear difference between a more general “purposes of all religion” and the more narrow specification of what that entails. The current law is contained in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which states that a requirement may only be imposed by religious organisations “so as to comply” with religious doctrine or “so as to avoid conflicting” with religious convictions. The drafting of the Bill would add a requirement to be proportionate, which introduces another layer of legal necessity and so means that it is further removed from the status quo.
As this Bill made its progress through another place and your Lordships’ House, the Government have stuck firmly by their claim that they have only clarified and not narrowed the definition. I would question this for two reasons. First, the Government have claimed that there is a need to clarify the language. In another place, the Solicitor-General stated that,
“there has been some confusion about what is meant by ‘the purposes of an organised religion’”,—[Official Report, Commons Equality Bill Committee, 23/06/09; col. 455.]
and that further clarity was needed to “clear up misunderstandings”. Yet we have seen no evidence of this. The only support we have heard for this claim of confusion is that there may have been some newspaper advertisements which claimed the exceptions were applicable to jobs when they should not have been applied.
Can the Minister therefore tell us whether there has been any court or tribunal case about specific newspaper articles, and can she inform the Committee what evidence there is of detriment being suffered which would warrant the change in the law? I should state that I would be expecting to see a great deal of evidence to merit that change. The Government have stated time and again that they are not changing the law one iota, but just clarifying it. The fact that they have stuck so firmly to this line, in the face of almost overwhelming opposition and evidence to the contrary, suggests that there must be a powerful argument, backed up by powerful evidence, for the need for this further clarity.
Secondly, the Minister will not be surprised to hear that we would like to raise the European Commission’s reasoned opinion 226. Noble Lords will now be aware that the exemptions for organised religion passed in 2003 were broader than those allowed by the employment directive of 2000. Paragraph 19 of the reasoned opinion stated, however, that:
“The UK Government has informed the Commission that the new Equality Bill currently … before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive”.
This brings us to a difficult situation. We have been told that the Government have not changed the law at all, just clarified it. The European Commission has been told, although I hear what the Minister says in response, that it has indeed been narrowed to fit with the directive. Perhaps the Minister could—
I am sure the noble Baroness would not wish to be unfair to the Government in any respect, but it has been argued that, for example, the doctrine of proportionality is already part of European law and was therefore part of the law in this area before this Bill was ever thought of. The fact that the Government have put in “proportionate” has not produced some fresh or new element; it has stated the law as it is, but making it much clearer that benefits for those of a religious persuasion that were not proportionate to the issue would not qualify. This is not therefore a new part of law, although some noble Lords sitting in front of me have argued points about law which are perhaps best left to judges—I would not say merely to lawyers. There is not a new element in what the Government propose.
The noble Lord makes an important point and it is to clear up that confusion that I raised these questions with the Minister. If there is some confusion about what the European Commission says the Government have said, and what the Government say they have said, she should be able to tell the Committee where that confusion arises from. Can the Minister confirm whether appropriate representations have been made to the European Commission about its confused understanding of what the Government have or have not said to them?
The Minister has taken time to inform the Committee of the Government’s new Amendment 99A. We are grateful that the Minister has listened to the concerns voiced from all sides of the House and accepted that the wording in the Bill as it stands does not reflect the Government’s claim for their intended policy. Nevertheless, we still find the definition unsuitable. Paragraph (a) makes it clear that Ministers are included, which the previous definition left open. Paragraph (b), however, contains a definition which, it seems, would be rendered the same as “wholly or mainly” in practice. This, therefore, still represents a narrowing of the current situation.
We on these Benches are not asking the Minister to change the law and we are not asking for a new exemption for religious organisations, but the case of Amicus makes it clear. The confusion appears to be in the Government’s drafting, in the inclusion of “proportionate” in the Bill. My understanding is that the Government may argue that to take out “proportionate” would raise questions both in the European Commission and in courts of law. We cannot argue that a particular amendment should not be passed because the Government drafted it wrong when they first drafted the Bill. I understand that the Government are making representations to the European Commission that the law as it stands complies. If that representation is being made and the Government believe it, what is the necessity to change the law? I hope that I have made it clear that we are merely asking that the status quo be preserved.
My Lords, this has been an excellent debate on an important group of amendments. I have to say that some aspects of the debate have saddened me, but none the less it has been extremely important and reasonable in many ways.
Amendments 98 and 99 are in the names of the noble Baroness, Lady O’Cathain and the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson and the right reverend Prelate the Bishop of Winchester. These amendments would remove the express test of proportionality in sub-paragraphs (4) and (5) of paragraph 2. In effect, paragraph 2 would state that complying with religious doctrine or avoiding conflict with strongly held religious convictions, are automatically proportionate occupational requirements.
Paragraph 2 replaces and harmonises the two separate exceptions for religious occupational requirements in current discrimination legislation that my noble friend referred to when replying to the debate on my noble friend Lord Alli’s Amendment 97E. The existing exceptions do not expressly include a proportionality test, as many noble Lords have said, but it is implicit, and its expression in paragraph 2 does not narrow the exception. It simply clarifies the existing law, reflecting, as the Joint Committee on Human Rights pointed out in its recently published report on the Bill, the approach adopted in the Amicus case to which I referred earlier.
In the view of the High Court in that case, one of the existing exceptions, regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, is
“on its proper construction, very narrow. It has to be construed strictly since it is a derogation from the principle of equal treatment; and it has to be construed purposively so as to ensure, so far as possible, compatibility with the Directive”,
that the 2003 regulations implemented. Regulation 7(3) was intended to form part of the implementation of Article 4(1) of that directive, which requires the implementing legislation—regulation 7(3) and, therefore, paragraph 2 of Schedule 9—to incorporate a proportionality test.
The proportionality test is fact-sensitive, meaning that what is proportionate in any particular case will depend on the circumstances. Therefore, in a case being taken to an employment tribunal, this would require assessment by the tribunal, but it would not be necessary or indeed appropriate for the tribunal to determine whether the doctrines of a particular organised religion could themselves be said to be proportionate. Rather, the tribunal would have to decide, in the particular circumstances of the case, whether applying the requirement in question was proportionate to comply with the religion’s doctrines or avoid conflicting with a significant number of the religion’s followers’ strongly held religious convictions. For example, it is unlikely that applying a requirement to a senior church representative not to be married to a divorcee would be a proportionate way of complying with the doctrines of the religion if the person's spouse previously had been married only briefly before converting to Christianity. I am very grateful to the noble Lord, Lord Lester, for his clear explanation of proportionality and the European law. I note the concerns expressed by the noble and learned Baroness and I shall return to those shortly.
It is important to note that the proportionality test appears explicitly throughout the Bill. Removing the test from paragraph 2 of Schedule 9 would put this provision out of step with other exceptions for occupational requirements in Schedule 9 and other areas in the Bill where a test of proportionality applies. It is unclear what the courts or tribunals might infer from a difference of approach in this case.
I come back briefly to the reasoned opinion from the European Commission. I am very grateful to the right reverend Prelate the Bishop of Exeter for his acceptance of the Government’s position that I set out earlier. I hope that Her Majesty’s Official Opposition will also accept that we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, to bring this position into line with the directive. That was incorrectly stated in the reasoned opinion.
Opinions between the Commission and the relevant authorities in the member states concerned are confidential. We of course have to respond to the European Commission. It would not be appropriate for me to state everything that was in our response to the Commission, but the Commission has wrongly accused the Government of saying something. Therefore it would be entirely natural if the Government were to make representations to the Commission, pointing out that we had been wrongly accused. Perhaps I may put it in that way.
I was asked why we are narrowing the scope of the existing exceptions by including a proportionality test. It is true that the existing exceptions, which paragraph 2 of Schedule 9 replaces and harmonises, do not include an express proportionality test, but they must be interpreted by the courts as if they did, in order to be compatible with European law. In response to the noble Lord, Lord Tebbit, that is not to say that in following European law we need not necessarily follow the law of the Lord. Therefore, for the sake of clarity, we are spelling out the requirement implicit in the existing exceptions. Not doing that would put the exception in paragraph 2 out of step with other exceptions for occupational requirements in Schedule 9, the wording of which has been harmonised. That is consistent with the Bill’s fundamental aim to simplify and harmonise the law, wherever possible.
The noble and learned Baroness, Lady Butler-Sloss, suggested that by adding proportionality the Government meant that the exception meant something different. Making the test explicit simply clarifies the existing law, reflecting the approach adopted in the Amicus case. That is also the view of the Joint Committee on Human Rights.
I turn to Amendment 100, tabled by the noble Baroness, Lady O’Cathain, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson of Swansea and the right reverend Prelate the Bishop of Winchester. This amendment is necessarily consequential on government Amendment 99A, but of course the noble Lords wish to remove the definition in paragraph 2(8) of employment,
“for the purposes of an organised religion”,
not replace it.
Removing the definition would reduce legal certainty and be a recipe for confusion. Organised religions and people whom they employ or who apply to work for them would not know for certain to which posts a requirement related to sexual orientation, for example, could lawfully be applied. It would also increase the risk of the exception being misused. In the event of legal proceedings, employment tribunals and the courts could not be certain as to which roles Parliament intended the exception to cover.
The noble Baroness, Lady O’Cathain, asked whether the Labour Party would expect Greenpeace to employ oil executives. This exception is not about the ability of churches or religious organisations such as charities to require employees to share their faith. There are separate exceptions for this in paragraphs 1 and 3 of Schedule 9. This particular exception allows churches and mosques to discriminate in limited circumstances because of sexual orientation, marriage, civil partnership and gender reassignment.
In response to questions on the Government’s amendment, I am grateful to my noble friends Lady Turner of Camden and Lord Graham of Edmonton for their support. The noble and learned Baroness, Lady Butler-Sloss, asked what “exists” means. It means the same as what my noble friend Lord Sainsbury meant when he used that expression during the passage of the 2003 regulations, which the High Court in the Amicus case interpreted. As I said earlier, the activity must be intrinsic to the role, but it need not be the entirety of the role. The noble and learned Baroness asked about a youth worker who taught Bible classes and drove the school bus. That was a good example, but, as I suggested earlier, the situation would depend on the purpose of the role and the nature of the work involved. Organised religions must be prepared to justify applying requirements of this kind on a case-by-case basis. It is important to emphasise that the exception applies to a very narrow range of employments.
The right reverend Prelate the Bishop of Winchester and others suggested that the Bill as the Government wish to amend it would make it more difficult for people to bring forward exceptions, and there would be more tests, bureaucracy and activity in the courts. We do not believe that at all. This Bill is about maintaining the status quo: it certainly would not mean more work for lawyers.
The right reverend Prelate the Bishop of Winchester also asked if paragraph 2 would prevent any lay assistant from being a Christian of good standing. It certainly does not prevent a lay assistant to a bishop from being a Christian. It would allow the application of requirements related to sex, marriage and civil partnership, and sexual orientation.
The noble Lord, Lord Pilkington, spoke of the important principle of freedom. The freedoms that we enjoy and celebrate will not be affected in any way by the passage of this Bill. As I understand it, the noble Lord was arguing for the widening of exceptions. That would not be acceptable: we want the status quo. Like all Members of this House, I want to enjoy and celebrate tolerance and to continue to do so.
As I mentioned earlier, the right reverend Prelate and others are under the impression that our amendment would mean a narrowing of the exceptions. That is not the case. Like the noble Baroness, Lady O’Cathain, we believe that there should be exceptions. There are exceptions, but there must be clarity; we do not want to leave any extra work for lawyers.
The right reverend Primate the Archbishop of York asked if the Government amendment would be limited to posts which exist only to promote or represent the religion. The answer is no: the word “only” does not appear. As I have made clear, posts which exist to promote or represent the religion are not limited to posts which only involve one or more of these activities, but one or more of them must be intrinsic to the post.
I am very grateful for the noble Baroness’s explanation. However, I am still not sure what is meant by “exists to”. Does that mean promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary characteristics? The Minister has to define that. For example, the Secretary General of the Church of England sits on the Archbishops’ Council, takes its minutes and does a number of things. He exists to do that, but that is not the only definition of the role of secretary general. Sometimes you may find him accompanying me to something else, which has nothing to do with the General Synod of the Church of England. Can the Minister assure us that unnecessary arguments about the meaning of “exists to” will not be introduced? My argument with the Minister is to do with the drafting, not where the Government are going.
My Lords, as I mentioned when I originally spoke to this amendment, the Secretary General of the Synod would certainly be covered. The point is that one of these characteristics must be intrinsic to the post: that is the test.
Earlier on, the right reverend Prelate and the noble Baroness, Lady Warsi—
Primate, I beg your pardon: he is indeed a Primate, my Lady.
They asked about court decisions. The point is that most cases do not come before a tribunal or court, however there is evidence that the absence of a definition caused confusion and that the existing exceptions were being misused. The Government received examples of where the exceptions appeared to have been inappropriately applied, such as advertisements by the Church of England for a pensions assistant and a director of finances.
There has rightly been much discussion of the need for exceptions, and we respect that need. There has also been talk of magnanimity. Magnanimity is justice, but I believe that what we are doing is justice. The Government are providing clarity. They are not narrowing the provision; they are consolidating and replicating but they are also clarifying, and good legislation means clear legislation.
The right reverend Prelate the Bishop of Exeter suggested that the amendment opens the Church up to more court intervention—I have spoken to this earlier. We believe that the opposite is true. By setting out clearly in the legislation the circumstances in which the exception applies, and therefore the balance of rights which must be struck, we believe that the courts will not need to adjudicate on these matters. As the judge said in the Amicus case,
“it was entirely proper in the present case for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims and interventions in these proceedings. The balance struck is proportionate”.
Our aim is to maintain that balance.
The noble Baroness, Lady O’Cathain, rightly wants to stand up. She mentioned her package of amendments: I would like her to withdraw her Amendments 98 and 99, but if she tests the will of the House, I will wish to move the government amendment.
Finally, I agree with the most reverend Primate that principles and values matter. Among the principles that we all cherish are liberty, tolerance and equality. I believe that what we are discussing and what the government amendment delivers adhere to those three principles which we all cherish.
My Lords, I am very grateful to all those who have taken part in this debate. I am grateful to the Minister, whom I count as a friend even if we do not always agree. We have had some excellent speeches, and some particularly wonderful speeches from the Bench of bishops, which clarified a lot of things in my mind.
The odd thing about this debate is that those of us who want to see Amendments 98, 99 and 100 succeed agree with government policy as stated by the Minister. The Government say that they do not want to change the legal position for churches when it comes to the ability to appoint staff—neither do we. They say that they do not want to narrow the exemptions—neither do I; neither do we. I just want the status quo. The noble Lord, Lord Lester, stated that we want to widen the exemptions. We have never stated that—we have never asked for a widening of the exemptions; we just want the status quo.
Let us not forget that in 2004 the status quo wording was challenged in court by the Amicus union. The law of the land at present is the law as stated by our High Court in the Amicus case. This supports the original wording to which we want to return—not to the reasoned opinion of the European Commission, or, with respect, to the opinion of the noble Lord, Lord Lester.
Finally, you will be glad to hear, I will speak generally about the Bill. In another place, Michael Foster MP, the Equalities Minister, told one national newspaper that churches should be “lining up (their lawyers)” in anticipation of legal challenges. That cannot be the right approach to protecting religious liberty, but without the package of Amendments 98, 99 and 100 that is precisely what would happen. We must keep the status quo, and I wish to test the opinion of the House.
99: Schedule 9, page 165, line 8, leave out “application is a proportionate means of avoiding conflict” and insert “requirement is applied so as to avoid conflicting”
Amendment 99 agreed.
99A: Schedule 9, page 165, line 10, at end insert—
“( ) Employment is for the purposes of an organised religion only if—
(a) the employment is as a minister of religion, or(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others).”
100: Schedule 9, page 165, line 13, leave out sub-paragraph (8)
Amendment 101 had been withdrawn from the Marshalled List.
101ZA: Schedule 9, page 165, line 26, leave out “an” and insert “a genuine”
Amendment 101ZA seeks to make a relatively minor amendment to the part of the Bill that lays down requirements relating to religion or belief. Paragraph 3(a) uses the words,
“it is an occupational requirement”.
I want it to say, “it is a genuine occupational requirement”. I do not suppose that anyone can really disagree with that, although we shall have to wait and see.
The next amendment in the group relates to a rather more complicated issue. The intention behind it is to limit the ability of an employer with a religious ethos to require that an employee should be an adherent of a particular religion, normally the employer’s own. The Bill provides for certain exceptions to be permissible in limited circumstances, but I do not see why an exception of any kind should be permitted when the employer in question provides a public service. This may increasingly come to be the case, as there seem to be arrangements in hand for charitable and religious organisations to take on responsibility for services that are normally provided by public—mainly welfare—services. Such services would normally have equal opportunities policies for their employees. There is no reason why a religious or charitable organisation that undertakes work in the public arena that is funded by the taxpayer should be able to insist that the employees who carry out the work should be of a particular religion. That is surely unfair and against the general ethos of the Bill.
Amendment 101C, my final amendment in the group, would insert after line 31 on the same page of the Bill:
“The exception under paragraph 3 shall not be used to justify discrimination on any other protected ground”.
That is important, because we are talking here only about religion and belief and we do not want discrimination against characteristics that are already protected quite specifically in the Bill—sexual orientation, disability and so on—to be possible somehow or other in this provision. That needs to be taken account of.
I do not know why Amendment 125A, in the name of the noble and learned Lord, Lord Mackay of Clashfern, has been included in this group of amendments. I do not know what it intends, but it appears to relate to sexual orientation, which is one of the protected characteristics in the Bill. It is not appropriate for this group of amendments, but I shall listen with interest to what the noble and learned Lord has to say in support of it. On the face of it, I do not agree with it.
The noble Lord, Lord Lester, has tabled a very similar amendment to mine. Again, I wait with interest to hear what he has to tell us, but my view is quite simple: a religious organisation that gives a public service does not have the right to insist that its employees should be of that religion. It is a very simple point and I beg to move.
I shall speak to this group of amendments as a whole. I cannot resist making the observation that, in the Division, the Lords Spiritual managed to vote as turkeys for Christmas—if noble Lords will forgive me for saying so—by removing the new and magnanimous protection that they were given. Proportionality was taken out of the Bill, probably encouraging the European Commission to suggest that our statutory powers will infringe its own and lead to further trouble. With this group, I will try to get clarification that the Bill will comply with EU law.
Amendment 101ZA, in the name of the noble Baroness, Lady Turner, will insert “a genuine” into the phrase,
“it is an occupational requirement”,
in paragraph 3 of Schedule 9. Can the Minister confirm that the amendment is not necessary because occupational requirement is already interpreted to mean a genuine occupational requirement when read in light of Article 4.1 of the directive? If that is confirmed, the need to include “genuine” becomes, as lawyers say, otiose.
Amendment 101A seeks to insert the requirement that a public authority cannot apply the requirements exemption relating to employment for the purposes of religion or belief. Amendment 101B—my amendment—seeks to do the same thing. Both amendments seek to give effect to the exemption in Article 4.2 of the framework directive and consolidate Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003.
Amendment 101C, in the name of the noble Baroness, Lady Turner, would write into the Bill what I think is the view of the European Commission:
“The exception under paragraph 3 shall not be used to justify discrimination on any other protected grounds”.
Paragraph 3, as part of Schedule 9, deals with other requirements relating to religion or belief. The problem that the Commission may have raised is that the wording of the old regulations—and it seems this part of the Bill—contradicts the provision under Article 4.2 of the directive, which specifically says that permitted differences of treatment based on religion,
“should not justify discrimination on another ground”.
Amendment 101C seeks to correct that. It is important because, as the noble Baroness, Lady Turner, said, some religious organisations have made it clear that they would seek to use this provision relating ostensibly to religion or belief to discriminate against employees on the basis of their private conduct—conduct relating to their sexual orientation or marital status. That is clearly outside the terms of Article 4.2 of the directive. We seek confirmation that that is so.
Furthermore, the judgment of Mr Justice Richards, as he was in the Amicus case, makes it clear that lawful, private sexual conduct consisting of gay or lesbian sex is so closely bound up with sexual orientation that discrimination on the grounds of such conduct is not only unlawful—it is not a genuine occupational requirement under Article 4.2—but also direct discrimination and cannot be justified. Again we seek clarification. That is our understanding of the law.
Amendment 125B is in my name but I have decided that there is no need to add to the complexity by pursuing it. Finally, Amendment 125A, in the name of the noble and learned Lord, Lord Mackay, would remove the exemption for sexual orientation in the provision of services by a public authority. As I understand it, his amendment would allow public authorities that provide services to discriminate against service users based on their sexuality. There are already a number of narrow exemptions for religious service providers but where they are publicly funded they should not be able to discriminate against those to whom they provide their public services. I do not want to go into the unanimous Court of Appeal judgment in the Ladele case—Heaven forbid that I should—where the registrar providing a public service refused to preside at a civil partnership registration, except to say that the judgment of Lord Neuberger, Master of the Rolls, and his two colleagues was, in my respectful judgment, inconsistent with Amendment 125A. We would therefore not support the amendment. I hope that that is clearer than mud.
The noble Lord said that the Lords Spiritual were like turkeys voting for Christmas. Actually, the Government said that they wanted to keep the status quo. We voted for the status quo and not for something quite different. In the case that has been recycled endlessly here, the claimants challenged what was thought to be a breach of Regulation 7(2) under the directive, but Lord Justice Richards decided that it was not. We have voted not for Christmas but for the tranquillity and magnanimity that we found in the regulations that were passed a long time ago.
I will allow the noble Baroness, Lady Turner, out of her difficulty by explaining what my amendment is about. I have no responsibility for the grouping but I did not object, as I am delighted to be associated with her. The noble Lord, Lord Lester, joins in the fray a little later. My amendment has only a marginal connection with that of the noble Baroness.
The problem is with what has happened. The Bill gives an opportunity of looking at the field that was taken up before by primary and secondary legislation. With secondary legislation there is of course no possibility of amendment except an out-and-out rejection. This is the first opportunity to look at these two matters together. This amendment was affected by the House of Commons procedures. It never got a full discussion as the click—if that is the right word—of the guillotine came down when the Member was moving it. The other place never really got to any discussion.
Secondly, it is right that we should consider this amendment now. I repeat the point made by the noble Lord, Lord Alli, on his first amendment this evening: the words used in the Bill—and hitherto in the statute—are “sexual orientation”. The last time I spoke on this subject I mentioned that, when the Commission originally made this proposal for the equal treatment directive, it pointed out that the discrimination factor was not sexual practice but sexual orientation. That is an important distinction. There is no reason why the provision should apply in respect of sexual practice. If it applied truly to sexual orientation alone, I would find it unobjectionable, but the fact is that, as a result of development, sexual orientation has now become associated with sexual practice. I do not see why there should be a restriction on a public authority or on organisations contracting with public authorities in that connection. It appears to me that it would be perfectly reasonable for a public authority, or an organisation that is contracted to and getting grants from a public authority, still to use its discretion in connection with matters of sexual practice.
This issue was raised in connection with Catholic adoption agencies and grants. It is important to notice that, where a public authority or a contractor to a public authority is giving a service, it is the service that the public authority wants to pay for and to support. If the service is given, the mere fact that it is given in a particular religious ethos does not appear to matter, except from the point of view of choice. I do not want to reiterate the debate about Catholic adoption agencies, but one of the results was that, where a Catholic adoption agency decided to hold to the tenets under which it had previously operated, it just closed down. The result of that is only to destroy a successful, excellent service. It does not give the lesbian or gay community the slightest benefit, because the service previously offered is no longer available, but it means that a service that had success in difficult areas was closed. For my part, I cannot see the need for that.
This matter goes much wider than the Catholic adoption agencies, but the same principle applies. Where a service is required and a particular group is in a position to give a good service, it should not be prohibited from taking part in a publicly funded exercise simply because it has a particular view and practice with regard to sexual practice. That is the reason for my amendment. I will not expound it at great length because it is quite simple. It is in this group because it deals with the same basic matter as the other amendments in the group.
My Lords, I welcome the amendment in the name of the noble and learned Lord and what he said about it. I was expecting him also to note that this is an area of the Bill where Parliament was particularly badly served by the practices at the other end of the Corridor. I believe that similar amendments were laid before the other place, but they were guillotined very quickly. It is a great pity that the House is so sparsely attended, given that we have such important business. I welcome the points made by the noble and learned Lord and I value the explication of the noble Lord, Lord Lester, of why Amendment 101ZA was otiose.
I turn to Amendments 101A to 101C and 125B. The effect of the two amendments in the name of the noble Baroness, Lady Turner, and, if I understand them rightly, those in the name of the noble Lord, Lord Lester, seems to be an utter impracticality. They would be likely to have the effect, if they were passed, of driving Christian and religiously based organisations out of the market for providing publicly funded services and, therefore, of removing from government at every level, nationally, regionally and locally, the opportunity to buy in services of a particular faith-based character and of a particular quality of excellence. At the minute, as I understand it, it is very much the policy of the Government to do that, which is an element of their activities that I welcome.
It is entirely impractical to suggest that a church or a faith-based organisation could be doing its work with its usual staff, for some of whom there would be a genuine occupational requirement of the sort that has been discussed under the Bill, but that, at the point when those same staff or that same charity were contracted to provide a service for government, whether national or local, the existing staff would not be usable for that purpose. The charity could not possibly employ another lot of staff or some other staff. There could not be two sets of staff and, if it was working without the staff doing its mainstream activity, it could not be offering the service for which it was contracted. If I understand the gist of the amendment in the name of the noble Baroness, Lady Turner, and the amendment tabled by the noble Lord, which is saying the same thing, I cannot think how that could be practical.
Amendments 101C and 125B seem to be a further narrowing of exemptions and a further restriction on religious organisations or organisations with a religious ethos in offering public services and receiving public money for bits of their work. I take paragraph 176 of the report on the Bill by the Joint Committee on Human Rights to be the background to the noble Lord’s amendments and his speech. The report states:
“We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service”.
That seems to put the cart before the horse. An organisation would be contracted to provide a public service because it already provides that kind of service in work for which it does not receive public money. The report continues:
“They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily”.
It is necessary to say again that, if those involved are people for whom a genuine occupational requirement is permissible, they will be representing the organisation with its faith-based ethos or the church. If their personal lives are contradictory to their own faith-based position and that of the organisation or the church, they will not be performing their job satisfactorily. That is the essence of this case and the reasons why Amendment 101C, which I now understand as I did not before, and Amendment 125B are insupportable.
Perhaps the right reverend Prelate would tell me whether he read the last bit of paragraph 176. The Joint Committee said:
“We are concerned that the widespread use of the ‘religious ethos’ exception … in Schedule 9(3) by organisations based on a particular religion or belief who are contracted to deliver services on behalf of public authorities could result in public functions being discharged by organisations in receipt of public funds who are nevertheless perceived to discriminate on the basis of religion or belief”.
Does the right reverend Prelate accept that that is a valid concern?
I read to the end of the paragraph and it is side-lined in my text. But I am intrigued by the language, “nevertheless perceived to discriminate”. The whole paragraph makes my point that if this is the line to be taken by government, that could mean goodbye to many of these organisations being available to offer some of their work through receipt of public funds, and to serve the state and the public in that way. That is the logic of that because I do not believe there is widespread use. I believe the use being made is legitimate and, to use the word we have all been using this afternoon, “proportionate”. It does not seem to me that they can be doing their job satisfactorily if they are in denial of the objectives of the organisation they are serving in their private lives. I do not believe, however, that any Christian’s life is private in that sense. Our activities are before the public, whoever we are.
My Lords, I support the spirit of Amendments 101A, 101B and 101C. I am particularly attracted to the elegance of Amendment 101B. Before I begin my remarks, could I say to the right reverend Prelate that I am a long-standing supporter of a mixed economy of providers in public services? I have no problems with that at all. Indeed, I spent six years as a director of social services doing just that in Kent and I have transferred public services into other bodies. However, one of the features of this kind of transfer when another body takes over public services is the discussions that take place around assurances being given to the staff who are being transferred from the public body. Usually one of the deals is that their conditions of services are safeguarded. That does not mean that they are going to be then subjected to inquiries about their religion and their private lives. It does not mean that they are going to be discriminated against when promotions come up. It is absolutely reasonable for a Government who are taking an Equality Bill through this House and through Parliament, and it is not discriminatory against the churches, to protect those staff in those circumstances from discrimination. As I understand, these amendments do just that.
If we are not going to change the legislation in that way, we—and by “we” I also mean the Government—are accepting that level of discrimination, because the Bill does that. Sad to say, my honourable friend Vera Baird acknowledged that in the other place. She simply brushed aside the concerns in paragraph 176 of the report of the Joint Committee on Human Rights by in effect saying that,
“the Government do not want to interfere with the religious ethos of the organisations, even though they deliver public services”.—[Official Report, Commons, Equality Bill Committee, 23/6/09; col. 455.]
I think that is rather sad, not because I want the Government to interfere in the ethos of religious organisations but because I would like them to be more robust in protecting the position of staff who are going to be transferred. I say that as a supporter of some degree of transfer of functions from public bodies for the better delivery of services to other organisations. I do not expect my noble friend the Minister to jump up and say “What an insightful man you are, Lord Warner. We thoroughly agree with everything you have said and we are going to have a change of heart”. But I ask her to consider some questions before the Government give up the idea of any amendment in this area.
The questions the Government should ask are as follows. There are only five. First, when working under contract with or on behalf of a public authority, are organisations with a religious ethos permitted to put a religious requirement on a previously secular position such as a care worker? We need an answer to that. Secondly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of being made redundant or of dismissal should their new post have religious requirements attached to them which they cannot meet? Thirdly, if employees must reapply for their position with their new religious employer, is it possible that their lack of required beliefs might render them ineligible for the very post that they had previously held? Fourthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because more senior positions have religious requirements attached to them? Fifthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because activities, training and other benefits are restricted to those who fulfil particular religious beliefs?
Those are all legitimate questions that trade unions, staff representatives or management should be asking before they transfer staff from a public to any organisation, religious or otherwise. It is particularly relevant when it is a religious organisation, which is what these amendments address. I do not expect my noble friend necessarily to answer all those questions now but I do expect her to give a serious answer in writing to those questions to reassure me and, I suspect, other Members of your Lordships’ House.
Does the noble Lord agree that he and I are talking at cross purposes about two quite different situations? I was speaking, as I should have thought was clear, and on what I thought was the matter being attended to, of organisations, either church organisations or of religious ethos, which find themselves contracted to undertake service on behalf of the Government and receive payment for doing so. The noble Lord is speaking of the transfer of organisations from the public service into the employment of a religious organisation. The points he is making have to be thought through. Some religious organisations might judge that to accept the kind of contract he is speaking of would so dilute their aims and objectives that they should not enter it in the first place. Some religious organisations which have agreed to such contracts have had their objectives so diluted that they have ceased to be what they were. But we were, I think, talking about two quite different situations.
Before the noble Lord, Lord Warner, replies, may I add a point that has not yet been made and which I think needs to be made? Under the European Convention on Human Rights and under the Human Rights Act, the United Kingdom has a policy of obligation to ensure that public authorities and bodies that are private but performing functions of a public nature, do not discriminate on the basis of a person’s sexuality, among other things. That is an obligation which, to take the example of the noble Lord, Lord Warner, reaches beyond a public authority in the strictly formal sense to a body which is private in form but is exercising functions of a public nature which involves discrimination.
The right reverend Prelate talks about a religious body which finds itself performing functions of a public nature and receiving state funding for doing so. I do not think it is a question of finding itself doing so—it chooses to do so. Instead of deciding not to have public funding and not to perform the service, it chooses to do so. Once it does, the United Kingdom has an obligation to ensure, on the basis of the case law I have seen, that it does not discriminate on the basis of sexual orientation, except in very narrow circumstances, such as necessity, proportionality and so on.
That is why it is important to clarify the issues we are talking about to ensure that, when one contracts out functions that would normally be performed by the state to bodies that are “private”, the reach of human rights law extends to them. If they decide not to accept public funds and not to perform a public service, that is their entitlement. One could say, however, that otherwise they might be having their cake and eating it and the poor old UK Government would ultimately be responsible for that, either under the Human Rights Act or under the convention.
My Lords, to answer the right reverend Prelate, I do not think we were talking at cross purposes. I was very clear in what I was talking about: the legislation as it stands potentially discriminates against those people who transfer from a public body to an organisation with a religious ethos that is carrying out functions on behalf of a public body. I have a longer speech with which I will not delight the House tonight about the possible discrimination for the users of those services as well, but that is a matter perhaps for another day. I am speaking on the narrow point that we need to protect staff who are transferred from a public body to an organisation which has a strong religious ethos. The questions I have asked relate to that, and it is no good trying to pretend that we are not faced with a real problem here.
The interests of the user of a service is surely not something for another day, but for us to consider when looking at these amendments. It seems to me that the issue has been extraordinarily absent hitherto because we have been discussing the rights of the people who deliver services.
The effects of legislation which has been passed without democratic discussion in another place, first as secondary legislation and secondly under the guillotine, have been to very considerably injure the users of services, and that is what I hope your Lordships will concentrate on.
My Lords, I support my noble and learned friend Lord Mackay in his Amendment 125A. Between us we just about represent the two ends of Christian practice in these islands, as indeed we live at their opposite ends geographically. It is a strange irony that my noble and learned friend should be leaping to the defence of the Roman Catholic Church, something I shall draw to the attention of the Archbishop of Westminster, who I am sure will be suitably grateful. We need help from whichever quarter we can get it.
That said, my noble and learned friend and I also represent between us a determination to try to protect reasonable and centuries-old established religious freedoms rather than wishing to come up with some brand spanking new right or another. Indeed, the attacks by the present Government on historic religious freedoms that Amendment 125A seeks to correct have become so severe that in a new Parliament, I think that the pressure for an Act to protect religious freedoms will grow and grow. It will also be an issue in the forthcoming general election for individual candidates breaking this way and that. There will also be pressure to resist the present trends encouraged by the European Convention on Human Rights which surely was never meant to entrench that in all cases, and without exception, the individual automatically trumps the group or community. Surely there must be some continuing recognition, as Amendment 125A seeks to establish, that in a truly tolerant and pluralistic society, there is not simply a collective of individuals, for therein, in that attitude, lies totalitarianism.
This was summed up very well by my noble friend Lord Bates speaking, as it were, ex cathedra from the Conservative Front Benches in his winding-up speech on 14 January in the debate introduced by the noble Lord, Lord Harrison, on toleration. My noble friend said,
“there is growing intolerance towards people of faith … they are being victimised. That cannot be right. I am sure that the pendulum has swung, but we need to remember that legislation and the pendulum were meant to correct something that was wrong”.—[Official Report, 14/1/10; col. 687.]
Amendment 125A seeks to recalibrate the pendulum’s swing in the interests of religious tolerance, and in it my noble and learned friend has taken a very measured and careful approach. One reason why the pendulum may have gone a bit haywire, as pendulums do, is probably constitutional. As my noble friend Lord Elton just pointed out in his brief but telling intervention, when another place debated back in 2006-07 issues concerning not only religious adoption services but also the state of residential homes, the record shows that precisely four minutes was allowed for the debate on religious adoption agencies before the guillotine fell. My noble and learned friend speculated that guillotines fall with a click, but I think they come down with a clunk and a thud. But what is entirely wrong is that no time at all was allowed for debate on the position of those providing services in residential homes where there is a religious ethos.
I understand from reports in the press that the noble Lord, Lord Butler of Brockwell, who is not in his place today, and other great members of the upper reaches of our mandarinate are producing a report for publication on Wednesday that will highlight a number of ways in which Governments, in particular this Government, have failed to govern well. I understand that it is going to say that one of the worst things that has happened is that so much legislation has gone through another place with no scrutiny whatsoever. I believe that to be totally wrong and for it to have been done in such a prejudicial way as to try to attack historic freedoms and religious faiths of all sorts, not just Christian, in this country. I think it is on constitutional as well as on the other grounds that it is necessary to take a fresh look at the issue, and that is what Amendment 125A seeks to do.
There are important human rights concerns here, but not just for service providers. As my noble friend Lord Elton has just so rightly pointed out, there are human rights that the legislation to which I have referred have trampled on. Let us take adoption services and the right of the child who needs a family and the rights of a family that wishes to adopt a child: what about those rights? I refer also to the rights of the providers of adoption services who sometimes are not so much concerned with their own personal and private lives but wish to provide services in response to faith beliefs and are moved to do so as an expression of their faith and their vocation—something which I believe this Government have treated with contempt, and I choose the c-word “contempt” with great care.
Already, as the right reverend Prelate said in his speech, agencies run by, for example, various Catholic children’s societies have stopped providing services for children and would-be adopters who need their help. For example, the Catholic Children’s Rescue Society in Salford and the Catholic Children’s Society in Westminster have been forced to cease their adoption work. What a triumph for the equality project that is. The recently retired CEO of the Westminster Catholic Children’s Society said in giving the reason why the service has had to cease:
“We would not be able to state within the context of adoption, that it is our belief that a married couple is better for children”.
I respectfully and admiringly agree with Mr Jim Richards—just for the record, once a Labour councillor and now in his happy retirement a deacon in the Roman Catholic Church.
I would like to ask the Minister this: how many children does she think have suffered so far because of this legislation? How can the Government really claim to be in favour of diversity and choice? Do they not recognise that religious charities and trusts which contribute to the provision of adoption for the young or provide residential homes within a faith ethos for the elderly, the disabled or those with learning difficulties have their own ethos which should be respected? In logic there can be no case under any circumstances for insisting that religious groups operate against their beliefs unless they are the unique monopoly supplier. I have never known of such a unique monopoly supplier of any service for which public funds are provided.
Surely, when we see that equality laws to help one group—which I do not necessarily object to—are so constructed that they turn out to damage another group—which I object to very much—however worthy in their original aims, it seems that the whole equality agenda has lost its balance and begun to promote inequality, thus becoming an inadvertent tool for intolerance and the oppression of religion in these islands.
So I hope that the Minister will contemplate carefully what my noble and learned friend Lord Mackay, my noble friend Lord Elton and the right reverend Prelate the Bishop of Winchester have said and agree to take away these issues to consider them before Report.
Does the noble Lord not think that, when public bodies responsible for providing public services contract out with religious organisations, they have some responsibility to ensure that vulnerable people are safeguarded under those regimes? There are plenty of examples of religious organisations which have abused public trust in these areas, and we cannot always be sure that they will not proselytise for people who are not of their faith who happen to be in their care at a particular time. Does the noble Lord agree that perhaps things are not quite as rosy as he was suggesting?
I do not much care for the noble Lord’s smear of Catholic adoption agencies—that they have somehow been involved in abuse or proselytising. I do not care for that at all. It is my belief that individual religious groups, as a testimony to their faith and beliefs, should be allowed, as part of the historic religious freedoms of this country, to provide a service to whoever wishes to buy it, whether it is the public sector or private individuals seeking to adopt a child or wishing to place their disabled or elderly relation, or adult relation with profound learning difficulties, within a religious community. The Government are totally wrong to take away from our churches and faith groups that historic right. This will come back again and again in the coming months. At the next Parliament, if we have not addressed these issues through amendments like the excellent Amendment 125A tabled by my noble and learned friend, many of us will be pressing for a Bill to protect religious freedoms in this country.
Perhaps I may address the point that the noble Lord, Lord Warner, made. I am a little puzzled by his position. Presumably, a local authority can agree with an organisation with which it is making a contract what the terms of employment shall be for the purposes for which it is delegating the work. If it does not get a satisfactory agreement, it can either not transfer it to anybody or transfer it to somebody else. The local authority is not tied. It is not in a cleft stick. It does not have to go to a Roman Catholic organisation for adoption if it does not feel able to protect its transferred staff in the way it would wish.
I came into this debate not to speak but to listen. However, I am getting extremely confused. Perhaps my noble friend on the Front Bench can dispel my confusion. The amendments tabled by my noble friend Lady Turner appear to be excellent and to further what I understand to be the spirit of this part of the Bill and also Section 29 about services. Regarding employment and services, we are talking about functions carried out with the use of taxpayers’ money by organisations acting as public authorities. I had thought that the purpose of the Bill was to make unlawful the discrimination, on various grounds, of people who either worked in these authorities or received the services. The amendments tabled by my noble friend Lady Turner appear to assist that.
Then I hear from noble Lords opposite that, in fact, freedom is being attacked by this will to erode discrimination. That is why I am puzzled. The freedom not to be discriminated against is prime. Surely this Bill is not for an organisation using public money and refusing its services in a discriminatory manner. Incidentally, I am aware of several religious organisations which provide services and employment on behalf of the public which absolutely comply with the spirit of the Bill, so there does not really seem to be this peculiar posited battle between freedom and discrimination. I hope my noble friend can explain the primary purpose of the Bill.
I thought that the primary purpose of this Bill was to simplify and codify the law. Perhaps I have come to the wrong place. We have just heard a very extensive, wide-ranging debate, which, as my noble and learned friend pointed out, has been greatly extended by the fact that these issues were not properly debated in the other place. There is a problem. If you neglect the elected House and impose timetabled Motions which then cut out debate on issues as important as this, you are not doing your job as a Government to be answerable to the electorate.
Some very important issues have arisen in this debate. It started with the noble Baroness, Lady Turner of Camden, wanting to put in the magic word “genuine”. We have not had much of a genuine debate about whether or not the word “genuine” needs to be inserted, which is technically what this debate is about, although there are a number of other amendments grouped. The most reverend Primate the Archbishop of York started off this debate so well when he said that surely what we have just voted for is tranquillity. He was responding to the noble Lord, Lord Lester, who said that the Bishops’ Bench was a row of turkeys waiting for Christmas. If I may say so to the noble Lord, Lord Lester, I think the most reverend Primate was naturally very upset at that accusation. Surely what we want to do is to simplify the law and make it much easier to understand so that everybody knows what their rights are. I should not be confused, but I am a little uncertain as to what the Government are trying to achieve with this section. Is it preserving the status quo? Is it simplifying the law? Is it seeking to codify the law? I am not sure and we deserve an explanation from the Minister.
In so far as Europe is concerned, the Government must be regretting certain parts of the Bill, which they were advised would strengthen their case with the European Commission. By voting to remove a portion of the Bill earlier, we have actually weakened the Government’s case. It would have been a much stronger case had they never put those provisions in in the first place. I am not sure that they were needed.
To go back to what is perhaps the most important principle, I agree with my noble friend Lord Patten and my noble and learned friend Lord Mackay of Clashfern. We have to strive to make sure that we do not create a situation where societies doing valuable work, often with the most deprived children, can no longer carry on that vital work. I agree with the noble Lord, Lord Warner, and I pay tribute to him. I saw him on a couple of occasions urging for a more mixed economy and the better delivery of services by utilising the resources of the private sector. I agree with him that we have to be very careful that the rights of an existing workforce to be transferred to another provider are carefully measured against the needs of the community that is being served. That must all be taken into account when the organisation taking on the service has to consider the implications of taking on that service, but also the Government have to consider how best they can ensure that the right service is carried on by the right people. My noble friend Lord Elton made a number of good points.
Like the right reverend Prelate the Bishop of Winchester, I am troubled and concerned by a number of aspects in this group of amendments—trying to dictate people’s religion, what religious organisations can ask of their employees, the whole issue of faith schools and everything else that has been brought into this debate, which has lasted almost an hour.
We ought to return to the original purpose of the Bill, as the noble Baroness, Lady Whitaker, just said. What is the purpose of the Bill? When I was Secretary of State for Employment, I had the benefit of the noble Baroness as my director of the equalities office. I like to think that now and again, although perhaps not in public, she might acknowledge that I took careful note of a lot of guidance that I received from her, and I take careful note of some of the things that she said just now.
I say to the noble Lord, Lord Lester of Herne Hill—and, in a way, to myself—that we are lawyers. I am one of the few people in the solicitors’ profession who still has a practising certificate, and I have had for 41 years. In many ways, I suppose people would think that we wanted the law to be complicated, but we do not; we want it to be simple and understandable. It is far better for society that we achieve that, so we look to the Government to clarify this situation.
My Lords, there are various matters in this debate that need to be answered and I will do my best to do so, while being mindful of the time. With the leave of the House, I will answer the questions turned about—that is, I shall refer first to the amendment of the noble and learned Lord, Lord Mackay, and then move on to the others, because that will work better.
I say to the right reverend Prelate the Bishop of Winchester who, along with some other noble Lords, has suggested that there was little or no debate about Schedule 23 in Committee in another place, that that is not so. Similar amendments to both Amendments 125A and 125B were tabled and debated at some length.
In answer to the noble Lord, Lord Hunt, the provisions in Schedule 9(3) and Schedule 23(2) replicate the effect of current provisions. I hope that that point will deal with most of these amendments.
I do not know the answer to that in detail because I have not made that comparison myself. As the noble Lord is aware, the Bill is largely about consolidating. I can certainly get him a detailed answer that will go through the two schedules and do that analysis for him, if he so wishes.
The noble Lord is right; hopefully, it will mean that the law can be easily read.
Amendment 125A would provide an exception for religious or belief organisations, or persons acting on their behalf, to impose restrictions because of sexual orientation on the provision of any services or functions being provided on behalf of a public authority. As noble Lords have rightly mentioned, we have a significant number of religious or belief organisations providing valuable services, often aimed at meeting particular requirements in some sectors of the community. I take issue with noble Lords who say that that is not the case and that the Government have not done a great deal to support those organisations in their work.
Under existing law, these organisations have a limited number of exceptions enabling them to refuse to provide a service or a function to gay, lesbian or bisexual people. We believe that this exception is entirely appropriate but only where such restrictions are necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents.
Where a relevant religious or belief organisation is delivering a public function, however, that exception does not apply. This is because, while the Government are sensitive to people’s religious beliefs, in circumstances where public money is being used to fund a service we take the view that the service should be provided to people irrespective of their sexual orientation, and I hope that the right reverend Prelate would agree with that. That is also the view of the Joint Committee on Human Rights, which welcomes the re-enactment and clarification of the existing provisions in Schedule 23(2) that concern discrimination on the basis of sexual orientation. The committee considers that there is nothing in any human rights standard that requires an exception to be provided to permit religious organisations to discriminate because of sexual orientation when delivering services on behalf of a public authority.
By contrast, the law enables the relevant religious or belief organisations to limit their service provision to people who have a particular faith or belief even where those services are being provided as part of a public service. This difference in treatment is for a valid reason. For example, a local authority that contracts out its provision of care for the elderly in an area with a large Jewish community may well choose to use the services of both a Jewish care home and a secular care home. We see that as entirely legitimate, provided that all those in need of care—I think the noble Lord, Lord Elton, made the point that we should address ourselves to those who need the care—are provided with it and to the same standard.
The exceptions as they are drawn and already operating provide the correct balance between the rights of those of a given sexual orientation to receive public services and not to be discriminated against and the freedom of others to manifest their religion or belief. For example, it is entirely legitimate that a local authority should contract with a Muslim organisation to provide meals on wheels that are halal. We cannot envisage any circumstances in which a religious organisation providing a public service could legitimately be allowed to provide it only to those of a given sexual orientation. This exception is designed to ensure that vital activities of such religious or belief organisations are not unduly hindered. Many of these organisations are used by local authorities because they provide specific services of a nature that the local authority itself cannot, or they do it in a better and more cost-effective way.
I turn to Amendments 101A and 101B. The amendments would mean that a religious organisation would be unable to require its employees to be of a particular religion or belief if they were acting as a public authority on behalf of, or under contract to, a public authority. Again, I make the point that religious organisations play an important role in bringing diversity to public life and the delivery of services that meet the needs of diverse communities. We recognise that such organisations need to be able to preserve their religious ethos. Schedule 9(3) allows them to have regard to their ethos when applying an occupational requirement for an employee to be of a particular religion or belief. Carefully targeted exceptions are an important means of allowing religious organisations to pursue their legitimate objectives.
It is important to stress that we are not doing anything new in the Bill with regard to the exception. We are preserving an existing exception in the Employment Equality (Religion or Belief) Regulations 2003, which implement EU directive 2000/78/EC on establishing a framework for equality in employment. A number of people seem to think that this exception gives religious organisations carte blanche to require all employees to adhere to their particular faith. This is simply not the case. I hope that I will be able to address the issues that my noble friend Lord Warner has raised in the next set of remarks that I make. I will then amplify them by writing to the noble Lord.
The principal function of a care home is the provision of care, not as a vehicle for a religious organisation to proselytise. That means that most of its employees are providing care. As I said, the exception requiring employees to be of a particular faith is not carte blanche for every employee to be required to be of a particular faith. On the contrary, it is very limited and will apply to only a very small number of posts. Its application will be subject to stringent tests. In practice, the further removed the function is from a place of worship—for example, the care home—the more difficult it is for those tests to be met.
The EU directive specifically recognises religious employers as a special case. This is an entirely justified exception. It is right that it should apply to all relevant employees and workers, including those working under contract for public authorities. It is worth noting that the relevant article in the EU directive refers specifically to both private and public organisations whose ethos is based on religion or belief. There is no question of broadening the exception through the Bill. It remains a tightly drawn exception applying to very few types of employment. Its application will continue to be subject to strict tests.
The employer must show that requiring an employee to be of a particular religion or belief is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim. Lastly, the employer must be able to show that it has an ethos based on religion or belief. Any organisation choosing to rely on exemption needs to be able to justify its decision before an employment tribunal if challenged.
As we are not introducing anything new in the Bill, there is no question of legions of public workers suddenly having to reapply for their jobs the moment this part of the Bill is enacted. My noble friends asked legitimate questions. What would happen where public service workers are transferred to contracted religious organisations from a public authority? Could they be made redundant or dismissed should their new posts have a religious requirement attached to it that they cannot meet?
First, the strict tests that I have described would have to be met for the given post to have the exception applied to it. In the case of a care worker, for example, it is unlikely that it could be argued that he or she must be of a particular religion or belief for the purposes of the job unless the nature of his or her job goes beyond simply the provision of care. In most cases it would be sufficient that the employee should have some understanding or respect of the faith in question.
In addition to those tests for attaching a religious requirement to a given post, the Transfer of Undertakings (Protection of Employment) Regulations 2006 would need to be taken into account by the new employer in this situation. The TUPE regulations provide protection for employees from dismissal as a result of transfer. The employee would be treated as being unfairly dismissed unless the reason for the dismissal was economic, technical or organisational. It is difficult to see how a dismissal simply based on an employee’s religious belief, or lack of it, could fall within the permitted reasons for dismissal under TUPE, as this is unlikely to constitute an organisational reason.
As for the future prospects of public service workers who are transferred to a contacted religious organisation, in practice an occupational requirement that an employee be of a particular religion or belief applies to a very small number of cases. Again, the strict tests applying to the exception need to be met in every single case. Protection would be offered and would be discussed before that transfer of engagements was made.
The Government’s view is that this exception strikes the right balance between protection—I hope that my amplification of this will reassure my noble friend—and allowing employers with a religious ethos the flexibility that they need.
I turn now to Amendments 101ZA and 101C—
My Lords, before the noble Baroness leaves this important point, will she be kind enough to ensure that any letter that she writes on this point to the noble Lord, Lord Warner, is circulated to all noble Lords who spoke in this debate, because these are complicated and, I suspect, fiendishly difficult areas?
My Lords, I give that undertaking willingly.
Amendments 101ZA and 101C seek to tighten up the drafting of paragraph 3 of Schedule 9, which preserves an exception that is currently provided by Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003. It permits employers and other persons with a religious ethos to require those working for them to be of a particular faith, provided that there is an occupational requirement with a legitimate aim. This test has to be applied to each post for which the exception is considered. A requirement must, by definition, be crucial to the post and not merely one of several important factors. The facts in each case will show whether the requirement is genuine. Therefore, I do not agree that Amendment 101ZA is necessary, although I appreciate that the 2003 regulations contain the word “genuine”. I have always wanted to say the word “otiose” in the Chamber, so I am very glad to echo the noble Lord, Lord Lester. We consider that the word “genuine” is unnecessary. My noble friend will know that we are trying to keep unnecessary words out of this Bill to keep the Bill’s English simple and plain.
I turn to Amendment 101C. I hope that I can assure my noble friend that the exception in paragraph 3 is intended to apply only to the protected characteristics of religion or belief as permitted by the EU framework directive on employment and occupational discrimination. The exception allows the application of a requirement to be of a particular religion or belief and thus could not apply to any other protected characteristics. With those reassurances, I hope that noble Lords will withdraw their amendments.
My Lords, the amendment that requires to be withdrawn is the one put forward by the noble Baroness, Lady Turner. Before she says what she wants to do about it, could I be sure that I have understood the Minister correctly? With respect to my Amendment 125A, does “sexual orientation” in the Bill mean sexual orientation or does it extend to sexual practice?
My Lords, I thank my noble friend for that very detailed response. I also thank noble Lords who have contributed to a very interesting and rather wide-ranging debate—much wider-ranging than I anticipated when the amendment was drafted. In particular, I thank the noble Lord, Lord Warner, because he spoke from a great deal of experience and gave what I thought was an unanswerable case that, when you have a transfer of employees from one employment to another, any union will do its best to ensure that the transfer that takes place does not mean a worsening of employment conditions for those employees. As far as this amendment was concerned, the idea was to ensure that people did not face demands in relation to their employment when a transfer was taking place that they had not had to face when they first took employment with a public service.
The right reverend Prelate contributed substantially to this debate, as he has on previous occasions. What does he think would be the case for an individual who is being transferred from one employment to another and, when he or she turns to that employment with a religious ethos, suddenly has to face a change in conditions that he or she had not anticipated when he or she first took that employment? If he or she had to face a situation in which sexual orientation was part of the requirement, or if requirements in relation to sexual orientation were something which had to be considered but which he or she had not had to consider at all in first taking the employment, it would be quite unacceptable. My noble friend made it clear that that was not the Government’s intention.
We have had a substantial number of assurances from the Government, which I should like time to consider, because this is a very complicated matter. I accept that in certain respects what has been suggested was not really required, because it is covered. I accept what was said in relation to Amendment 101ZA—namely, that it is not necessary to insert “genuine” before “occupational requirement”. That point was made by the noble Lord, Lord Lester, and I accept it completely. I thank him for that and for his detailed contribution on this rather complicated question. In the mean time, I beg leave to withdraw the amendment.
Amendment 101ZA withdrawn
Amendments 101A to 101C not moved.
House resumed. Committee to begin again not before 9 pm.