Equality Bill

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Q 131Dr. Harris: So basically you are saying yes. We can argue about whether a youth worker is wholly or mainly involved in promoting and explaining the doctrine of the religion, or in providing activities for youths—that could vary according to the facts of the case. You are saying, just as when someone changes their religion, that if a person becomes sexually active, that is a matter for you, and it could be a factor in whether they continue with their livelihood.
William Fittall: We would say that if someone disqualifies themselves—
Dr. Harris: So you are saying yes.
William Fittall: I am not telling you what a particular bishop or employer in the Church of England would do, but a faith organisation is entitled to look at the totality of someone’s life. The distinction that is drawn in most employment situations between private life and the workplace does not hold where people have a representational, pastoral or teaching role. That is true on behalf of any faith, not only the Church of England or Christianity.
The Chairman: I will call Lyn Brown and then Tim Boswell. I believe that Andrew Copson also wants to comment.
Q 132Lyn Brown (West Ham) (Lab): I want to pick up on a point that you have just made. You told us that different bishops might behave in different ways. The consistency of the Church of England’s position and the way in which it behaves across the country seems to depend on the attitudes of different bishops to different circumstances. Is that right?
William Fittall: I was asked a specific question about a possible individual case. In all religious organisations, you will find that people handle difficult personal situations in sensitive ways. The Church of England—and I think all faiths—has rules and standards. You will never get total consistency in practice, but certain rules are observed strictly by all bishops. For example, to take a non-contentious issue, bishops would not agree to ordain someone in the Church of England who was living outside marriage with somebody of the opposite sex. That person would either have to be married, or not be living together with someone. I do not think that the Bill trespasses on that, but I mention it as there would be consistency on that issue.
The Chairman: Sorry, Lyn, but a lot of people wish to speak. Do you have a further point?
Q 133Lyn Brown: I would like to come back on that issue as I am interested in how much we need to understand about somebody’s life in the bedroom in order for them to be employed by the Church.
The Chairman: Mr. Copson, you wanted to contribute on this matter.
Andrew Copson: Obviously, we make use of the exemption in employment for our chief executive, for example, and for our funeral celebrants, who conduct non-religious funerals. As far as we are concerned, we are content that the provision gives us all the scope we need for genuine occupational requirements; we do not see it as a narrowing of the previous requirement. If it were a narrowing, however, we would support that. Our view, which you can see in the evidence from employment tribunals included in our submission, is that some religious organisations have been going well beyond what was allowed by the occupational requirement in the past. Although we would welcome a narrowing, we do not think that this is a narrowing, and we are content that it will let us do what we need to do on preferring non-religious people for a very limited number of posts.
The Chairman: I will call Tim Boswell. Perhaps colleagues will make it clear whether their question is aimed at a specific member of the panel or whether it is open for response. I will call Maleiha Malik in a moment.
Q 134Mr. Tim Boswell (Daventry) (Con): Thank you, Mr. Taylor. My question is to the two Church representatives, unless others wish to contribute, and it is procedural. Are some of the difficulties that we are clearly already in related to the fact that these matters were not really consulted on? Can you give us a bit of history about when they were introduced to you, and your take on them?
Richard Kornicki: These matters were introduced to us when the Bill was printed. We had no sight or prior knowledge of them. We have good relations with officials. I sit representing both Churches on the senior stakeholders group, but there was no intimation of this at all.
Q 135Mr. Boswell: Thank you. It is understood from the earlier exchanges that we are trying to strike a relatively fine balance between the objectives of equality and not collapsing your position into an at-large licence for discrimination and the rather—as you see it—narrow provisions in the Bill. I noticed in particular that Mr. Fittall mentioned three tests: representational functions, pastoral functions and the third one, which came in as a side wind, teaching. I am not clear whether that is subsumed by the pastoral. Would an amendment along those lines achieve what you want, which is presumably to allow you to deal with situations of scandal or distress to the Church, but outwith the constraints of equality law, without collapsing your position to one of discrimination? How do you see the balance being struck?
William Fittall: That is exactly right. I should have said, as we did in our briefing to proceedings on Second Reading, that we broadly support the objectives of the Bill. Gay rights are important, and people should not in general be discriminated against in the workplace. You are talking about how to balance conflicting rights. The issue is where you strike the balance. Our contention is that it ought to be possible through judicious amendments to strike that balance more satisfactorily.
At the end of the day, we want equality. We also want to preserve religious liberty, which has been an important hallmark of this nation down the years. However wrong people might believe individual Churches or other faith groups are on some issues—whether it is their attitude to divorce, whether women should be priests or same-sex conduct—it must ultimately be part of the teaching of that particular faith strand.
Q 136Sandra Osborne (Ayr, Carrick and Cumnock) (Lab): I would be interested in what you think about the recent decision of the General Assembly of the Church of Scotland to enable a Church of Scotland minister to fulfil his calling in a church in Aberdeen? It was voted for by a majority in the General Assembly recently. My understanding is that he lives openly with his gay partner. Could anything in the Bill as drafted stop the Church of Scotland doing that? Would there be implications for how you want to amend it, for example?
I know that you cannot answer for the Church of Scotland and we have no representative of it here, but why did it believe that such action struck a balance between its pastoral care and not discriminating against a person?
William Fittall: I was really disappointed with the statement made by the Equality and Human Rights Commission for Scotland after the careful and finely balanced debate that the General Assembly had a couple of weeks back. The commission said:
“The values of fairness, equality, dignity and respect are of more worth than those of ignorance and intolerance.”
Well, that is a point of view, but there is a danger of polarising the two views. Lots of Churches are agonising over the issue. We saw in the Church of Scotland debate how it was agonising over whether it could move forward. It held two debates, one of which allowed the minister to take up his post in Aberdeen. Two days later, it called a moratorium on ordaining people in gay relationships and set up a commission.
The Church of Scotland is struggling with the issue. The Church of England is struggling with it; we see that clearly. The Anglican communion is struggling with it. Some Churches struggle with it less because they have clear views one way or the other. Our contention is that, whatever our particular position on the spectrum, such things must be worked out within the particular faith tradition.
Of course, we should not be allowed to discriminate, as you would see it, in relation to backroom jobs. The Government recognise that there is a sort of front-of-house role to assist the observation of “liturgical and ritualistic practices”—not a phrase that we would have come up with had we drafted the Bill—and promoting and explaining the doctrine of the religion.
The provision has been drafted narrowly and it creates some anomalies, too. It draws the line in a very strange place. It could enable discrimination against organists, but not youth workers. We need some discussion about that, as the Bill moves forward.
Maleiha Malik: I do not think that there is any evidence that there is a narrowing, but, like the British Humanist Association, we would very much welcome and strongly support any narrowing of the exemptions, for the following reason. The way the exemptions strike the balance between the rights of organised religion to discriminate and the rights of individuals to be free from discrimination is deeply unfair. It gives too much power to organised religions to police their internal members.
Our submission proposed the following amendment —a narrowing of the exemptions to subject them to requirements of reasonableness and proportionality, as in many Scandinavian countries. So, for example, an individual who had worked for a long time and then went through certain private law changes could not be summarily dismissed from employment.
Finally, we strongly recommended in our submission that the current position of having no supervision of how those exemptions are being used is unsatisfactory. We suggested that there should be an annual reporting provision. Those who exercise exemptions should report annually to the Joint Committee on Human Rights.
Q 137Mr. Harper: I want to probe a slightly different aspect. I am fairly relaxed in those cases where there is a genuine occupational requirement for the Churches to be able to exercise their right to choose. What I am not clear about, which is the start of my question, is whether the Bill narrows the law.
Under the existing regulations, it is already the case that being of a particular religion or belief can be a genuine occupational requirement of the job. It is already the case in existing law, to pick up Ms Malik’s point, that the requirement has to be proportionately applied. We seem to be arguing about whether the exact wording in the Bill around
“promoting or explaining the doctrines of the religion”
sufficiently captures those who are not doing so, such as those involved in pastoral work.
Looking at one of the examples given by the Catholic bishops, I would not think that a residential caretaker post was an instance in which being a practising Catholic ought to be an occupational requirement of the job, just because of contact with members of the Church. My reading of the Bill so far suggests that it does not actually—certainly not significantly—narrow the existing law, because the existing law says that it has to be a genuine occupational requirement of the job. What I am looking for is why you think it does.
The youth worker role, from what you have said about it involving the teaching of the religion and its nature, seems to me to fall within the exemption in the Bill. I am not clear what other roles you are talking about that would be excluded.
The Chairman: Please keep questions fairly concise; we have a lot to do before 11.30 am.
Richard Kornicki: My understanding is that the previous legislative provisions did not define the purposes of an organised religion. That is defined in paragraph 2(8) of schedule 9, and it is that definition that effectively narrows the law. That is the change that has been made, as I understand it.
The point that we are trying to make here is that, fundamentally, this goes to the credibility of the post holder in performing their function. The youth worker may have a function that involves supervising teenage children in a church hall, in social activities. That is not formal teaching of religion, but the group may be coming up to their confirmation, and issues of religion will and should arise—issues of morality and of behaviour. It would not be credible for the person holding that post not to be in harmony with the teachings of the Church. The credibility of the function being performed would be at stake in such pastoral, representative roles if the person were not in harmony with the teachings of the Church. That is what we are looking at.
William Fittall: May I clarify? We are not saying that the religious genuine occupational requirement in paragraph 3 of schedule 9 has been changed; it is the other requirements relating to sex, marriage and sexual orientation, which come in paragraph 2. The interaction between those two is where you get the narrowing. In saying that something is a religious post, yes, that remains the same, but what requirements can be set in relation to marital history, sexual orientation, conduct and so on? That is where there is undoubtedly a narrowing—in paragraph 2(8).
Jon Benjamin: The discussion to this point has picked up a number of themes, one of which is the lack of uniformity, be it in the Church or the Jewish religion, over how these things will be applied. In the case of the youth worker who comes out or whose marriage breaks down, an important reaction may be that of the parents or the members of the organisation—how they would respond to that—and, again, rightly or wrongly, whether the wider population would endorse that view. Their concerns and their rights to practise their religion and to have people interacting with them and their children must be considered.
There is a lack of uniformity, and I do not think that one can fairly press any one of us for an answer—goodness knows, in the Jewish community there is a great breadth of opinion on all those issues. Equally, it comes down to the nature of the occupation or the job. It is very difficult. Maybe Parliament should avoid trying to give a definitive black-and-white view on any of those things.
“Genuine occupational requirement” is a helpful phrase as far as it goes. “Reasonableness” and those words beloved by us lawyers also help, but ultimately, it will come down to not the courts, I hope, but the Equality and Human Rights Commission or whoever is providing guidance. I understand that the commission is considering providing guidance—perhaps statutory guidance—to help people, employers and potential employees through what will be a minefield.
It occurs to me that, taking the example of faith schools, which is an area I am quite involved in, it should be incumbent on employers to provide in the job specification some justification for what is a genuine occupational requirement and the mores and standards of behaviour and activity that they expect. Then, in all fairness to the applicants for a job, they would understand what was required of them and whether they would be comfortable working in a particular environment. That might avoid a lot of these problems down the line, but of course, one cannot foresee a marriage breaking down or someone’s lifestyle changing significantly.
Therefore, there is a very up-front and open approach to what is expected of people. Perhaps the document can be used in some evidential way to show whether the requirements of the community in which someone is seeking to work are set out clearly, so that they know what they are letting themselves in for, and equally, whether the community, the Church, the organisation or the religious institution has set out its stall clearly at the outset.
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