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11 Nov 2009 : Column 78WH—continued

Robert Key: The problem is that it would not matter whether the Church of England were established or disestablished. The whole point is it would be coming to
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Parliament as the established Church, inviting us to endorse something that is illegal; or, through its own rules if it were disestablished, saying, "We are going to do something illegal"-that is, if it was being discriminatory. That is the problem that we face.

Dr. Harris: I disagree. Furthermore, I was puzzled by what the hon. Gentleman said in his speech. Let us say that a religious organisation that is not established came to us and said, "We are thinking of changing the way in which we discriminate. We are not going to discriminate as much, but we will still have a two-tier system because some bishops or priests will have their authority limited on the basis of their gender by the fact that other people will come in." The Church will still be able to use the exemption that has been granted to it to do that. The exemption therefore does not have to be got rid of for the Church of England, whether established or not, to end discrimination. It is available to it to say, "We are using this exemption in order to discriminate." However, unless it had no discrimination whatsoever and no arrangements to help those parishes that will not accept the authority of a woman bishop, it would be better for it to keep the exemption so that it could use it in a more limited way.

Robert Key: The problem is the Church of England has decoupled itself from the exemption by saying, "No, it is not a prerequisite of the job that you be a man," so it is now saying, "We are decoupled, but we are now heading back towards the buffers. We are now going to go back on what we said by reintroducing discrimination."

Dr. Harris: No, that is wrong. I am not a lawyer, and I spent far too long on the Equality Bill to want to return to it on an Adjournment debate on a Wednesday afternoon. Discrimination is not just about a priori criteria. If we treat someone differently in their job on the basis of their gender-in other words, make them a different type of bishop because of their gender or because someone else is coming in, as the hon. Gentleman said-that would still be discrimination, even if it is said at the outset, "It does not matter what your gender is." It is less favourable treatment, or different treatment that may be considered by the "victim" to be less favourable. That is direct discrimination.

As the hon. Gentleman rightly said, an organisation needs to have an exemption from the law in order to discriminate directly, because it cannot run a proportionality argument on direct discrimination. That is why the exemption exists. This debate about the Church, whether established or not, is not about the existence of that exemption, because if it ever wanted to go back to or to create a system where there was still some difference in treatment, which may be seen to be putting one gender at a disadvantage, it would require that exemption. None the less, that exemption should be narrow, as it is, for organised religion where gender is a genuine occupational requirement. I have consistently argued that the limited exemption for discrimination on the grounds of sexual orientation should be as tightly drawn as possible for organised religions that deal with roles that are essentially proselytizing, such as those for priests and so forth.
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By allowing exemptions for religious organisations to seek to discriminate, we have the balance broadly right. We do not allow it on racial grounds. There have been religions across the world that have sought to have racial discrimination in their outlook, and they would run into difficulties here. There would be a clear clash of their right to believe with the right to non-discrimination set out in our equality law. However, they are not around here at the moment, so it has not been an issue, and we would not want to see it be so either. There are clear orthodox bases for sex discrimination, whether or not we agree with it or whether or not we are religious, and that has to be recognised.

David Taylor: Is it not the case that the thrust of what the hon. Gentleman is saying is very substantially weakened by what the hon. Member for Salisbury (Robert Key) said in his opening remarks? The great majority of the ministers of the Church of England, of its congregations and of the General Synod have expressed support for the concept of women bishops. How can what the hon. Member for Oxford, West and Abingdon (Dr. Harris) is saying be sustained in the face of such figures?

Dr. Harris: In so far as I have a view on the way in which any religion organises itself, I think that there should not be any discrimination. When my constituents write to me and ask me what I think, I reply, "If it comes to me and I have to make a decision, I will vote on the least discriminatory basis." However, I will do so conscious of the fact that I am, in a sense, interfering in a club of which I am not a member. That would apply to anyone here who is not a member of the Church of England.

My general rule is that organisations work better when there is no discrimination, but I believe in freedom of religious belief. If something or someone who is closely tied to that religion, such as in a proselytizing role or a key leadership role based on promoting doctrine, feels that they have to discriminate, I am not going to campaign for that to end. I do not campaign for the end to discrimination in priesthoods in any religion. What I feel strongly about is religious organisations seeking to discriminate against ordinary people in the way in which some adoption agencies and schools have sought to do. That is when I get going, although I do not want to go down that path now.

I was seeking to explain why, in the context of believing in disestablishment, my party is reticent about getting involved in telling the Church of England what it should do. If all my colleagues were asked for their personal views, I suspect that the majority of them, whether or not they are members of the Church of England, would be in favour of non-discrimination. I recognise, both in my constituency and across the country, the valuable pastoral role that women priests have played since they have entered the Church of England. That cannot be denied. The sky has not fallen in, as some thought it would. I hope that the Church will be able to reach an accommodation and be at peace with itself and with its decision, and I hope that that decision will be to end discrimination. If it comes to Parliament, that is what I shall support, on a personal basis.

3.58 pm

Mr. Mark Harper (Forest of Dean) (Con): It is a pleasure to serve under your chairmanship, Mr. O'Hara. I congratulate my hon. Friend the Member for Salisbury
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(Robert Key) on securing this important debate. It is not a debate about what instructions we should give to the Church of England, but a spirit of inquiry from my hon. Friend, who represents a part of the Church, just to test the matter and have the Minister be clear about what the law says so that it can guide the Church in its deliberations. Just as my hon. Friend declared his interest, I can declare my interest as a man and as a Christian, albeit a member of the Catholic Church rather than the Church of England. However, I am afraid that I do not come to this debate with such an impressive list of theological or Church qualifications. Like the hon. Member for Oxford, West and Abingdon (Dr. Harris), I would normally hesitate to discuss the tenets of another religion, but, as my hon. Friend accurately said, whatever faith we have, and whatever view we take about the establishment of the Church of England, it is the established Church and we in Parliament are asked to take a view of it. In a sense, even not taking a view is taking a view, in that not participating in the debate or not taking a particular view may affect the outcome of that debate.

I had thought that, coming to this debate as a Catholic, I should do a little research myself to see what current Catholic thinking is. I dug out the Ordinatio Sacredotalis, the apostolic letter of the late John Paul II to the bishops of the Catholic Church on reserving the priestly ordination to men alone. Unlike the Church of England, the Catholic Church takes a definite position on this issue. Indeed, according to the late Pope, the Catholic Church does not really have any authority on this matter at all, in the sense that it has said that it is not the deciding factor on whether women can be ordained as priests in the Catholic Church. In his letter, the late John Paul II made his position clear:

That does not leave a lot of room for doubt. However, the Church of England, of course, does things in a somewhat different way.

My hon. Friend raised some important issues and they are important for two reasons: first, because of the draft Measure that, as he said, is being debated in the Church of England. He said that he seeks guidance from the Minister here today on exactly how the current law will apply to that Measure, so that he can give the Church some guidance about how it should draft it and decide on it.

The second reason why my hon. Friend's points are important concerns the Equality Bill; I apologise if referring to that Bill upsets the hon. Member for Oxford, West and Abingdon, but I will refer to it only briefly. I understand that schedule 9 to the Bill just converts existing legislation relating to the requirement to be of a particular sex to a new framework. However, I want to ask the Minister whether anything in that schedule would affect what the current law says. Given that the Equality Bill will come back to this House for Report and Third Reading, if he says anything now about the application of current discrimination law, we might need to look again at those aspects on Report.

If I have got the nub of my hon. Friend's argument right, this may be where the hon. Gentleman, and I disagree. I quoted the Catholic teaching on this matter
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because the exemption on direct discrimination in the current law only applies, as I understand it-I think this is what my hon. Friend said-if the religion itself says that there is a specific legitimate theological reason why a post may only be held by a certain person: in this case, by a man. The Church of which I am a member still holds that to be the case, so it would trigger that exemption in the law and would be able to discriminate against women and say that only men can be priests.

However, my hon. Friend made the point that because the Church of England has decided in principle that women are able to be priests and bishops, that exemption does not apply and regular law therefore applies, and the Church of England would have to treat women bishops in the same way that it treats male bishops. Consequently, it should not undermine the authority of women bishops and it should have sensible procedures in place so that they are not undermined. That directly relates to the decisions that the Church of England will have to make ahead of February 2010, when it passes its Measure on this subject. I think that is the nub of what my hon. Friend said.

I reinforce the questions that my hon. Friend put. They are pertinent and important because they may affect what the Church of England decides to do, and, therefore, the nature of the Measure that is brought before this House for approval.

Dr. Harris: That is an interesting clarification. I must confess that I have not studied the detail of the law in this area. However, if the hon. Gentleman is right, the question is whether the Church of England should seek a different exemption that would give it the flexibility to decide whatever it wants, or whether it will be satisfied to be straitjacketed into an either/or situation. That is a matter for the Church itself, but it is curious that the strict nature of the exemption as described would not allow the Church any flexibility as soon as it decides to open up the bishopric to women.

Mr. Harper: I am grateful to the hon. Gentleman for that intervention. I think that really is the nub of what my hon. Friend is saying-that because the Church of England has said that there is not a specific requirement to be a man in order to become a priest or bishop, the specific exemption in equality law, current sex discrimination law and the Equality Bill is not triggered. For that exemption to be triggered, there must be an occupational requirement to discriminate on the basis of sex.

The other important issue is how the application of the requirement to be a particular sex can be brought in, which may be the point the hon. Gentleman is getting at. The non-conflict principle can be brought in, relating to whether or not a decision affects a significant number of the religion's followers. That is why the statistics that my hon. Friend gave at the beginning, showing that a significant but not overwhelming number of the Church of England's supporters support women bishops, are important. The numbers he quoted were very significant: more than 80 per cent. of the clergy, and an even higher proportion of the laity, support women priests, and almost 70 per cent. of the clergy and more than 75 per cent. of the laity support women bishops. Nevertheless, that still leaves a minority-a small but significant minority-of both laity and clergy who do not support women priests or women bishops.
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It may be that, if those people have strongly held religious convictions, the non-conflict principle in both the present law and the law the Minister's Department is bringing before the House is a proportionate way of dealing with that conflict.

I think that one of the questions my hon. Friend asked is this: is what is being proposed-or at least thought about-by the Church of England a proportionate way of dealing with that potential conflict? If it is, that may be a road that members of the Synod choose to go down. If it is not, however, that factor will clearly be very important in their deliberations.

My hon. Friend has asked questions that are very important not just to the Church of England but to us as Members of Parliament, because we will be asked at some point in the next few months to make a decision on them. Furthermore, they are of general importance because this debate informs how equality law, both current and future, applies to all religions. That is important to every one of us, whether we have a faith or no faith at all.

4.7 pm

The Parliamentary Secretary, Government Equalities Office (Michael Jabez Foster): I join other speakers in offering my congratulations to the hon. Member for Salisbury (Robert Key) on securing this timely debate, the contributions to which we have all listened to with great interest. The Government will be carefully following the progress of the Synod's draft Measure.

I am grateful for the clear way that the hon. Gentleman set out the issues. I am also grateful for the contributions from the hon. Members for Forest of Dean (Mr. Harper) and for Oxford, West and Abingdon (Dr. Harris), and from my hon. Friend the Member for Wirral, South (Ben Chapman).

As it is a time for confession, I guess that I ought to say that I am also a man. Furthermore, I am a Christian, although I happen to be a Methodist. I do not know whether that makes us sufficiently ecumenical to determine the issues we are debating today, but certainly we all come from quite different backgrounds. Of course, my role today is to say what the Government believe.

In discussing these issues, we touch on the particular relationship between the Church of England and Parliament, and on the historic place of the Church of England in the political and social life of this country. As a Minister, I am hesitant to intervene in the internal debates of the Church of England, especially on a matter which is so hotly debated within the Church itself. Furthermore, as the hon. Member for Salisbury rightly said, we may need to determine our position on those debates at a later date. Nevertheless, I have been asked some specific questions and I will do my best to make the Government's position, as I see it, as clear as I can.

The Government's general position is certainly clear: we wish to prevent unlawful discrimination because of sex, or because of other protected characteristics. We recognise that there are specific circumstances where exceptions are warranted, and where that is the case, we provide them in a way that balances appropriately the rights of all the relevant parties.

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The Sex Discrimination Act 1975 is the main legislation in Britain that prohibits discrimination between men and women, both in the workplace and beyond. Let me say briefly how that Act applies to religious organisations. In its capacity as an employer, the Church of England is bound by the provisions of that Act like every other employer. Like all organisations, it can require either a man or a woman when recruiting to a job or selecting, promoting, transferring or training an employee in relation to that job, but only in narrow and tightly defined circumstances where it is a genuine occupational qualification for a particular job. The 1975 Act exhaustively lists a very narrow set of such circumstances.

It is also lawful, if the employment is for the purposes of an organised religion, for an organisation to restrict access to a job to a man or woman strictly to comply with the doctrines of that religion or to avoid conflicting with the strongly held convictions of a significant number of the religion's followers. Authorisations or qualifications conferred by a qualifying body for the purposes of an organised religion may be similarly limited. It is that exception that is most likely to be engaged by restrictions on women filling posts as ministers of religion.

Turning to the first question I was asked by the hon. Gentleman, let me be clear that it is permissible in law not to allow women to be bishops provided that that is done to comply with the doctrines of religion or to avoid conflict with the strongly held religious convictions of a significant number of the religion's followers. That is the case now under section 19 of the 1975 Act. To answer the hon. Member for Forest of Dean, we believe that it will remain the case under the Equality Bill. The law will not change.

Specifically, paragraph 2 of schedule 9 to the Equality Bill provides an exception for occupational requirements related to sex, sexual orientation, gender reassignment and marriage or civil partnership where employment is

That is defined as employment consisting wholly or mainly of

Dr. Harris: The measures the Minister has just read out would enable discrimination to be applied to those who assist in the observance of religion. Can he confirm that in theory, the drafting would allow a church to restrict organists based on sex, sexual orientation or the other grounds listed? The wording is "leading or assisting" in liturgy.

Michael Foster: Applying the requirements is permitted only where that is a proportionate means of complying with the doctrines of the religion or avoiding conflict with the strongly held religious convictions of a significant number of the religion's followers. Of course, in the end, it would be a matter for the courts, but it seems unlikely that it would go as wide as to include an organist. That is certainly not the intention.

The Government's agreed position on which posts should be covered by the exception remains the same as when Lord Sainsbury described it in the debate on the
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Employment Equality (Sexual Orientation) Regulations 2003, which contain an exception analogous to section 19 of the 1975 Act. He said that it involved

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