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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