Q
138John
Mason (Glasgow, East) (SNP): We are quickly getting into
the area of competing rights. In many ways, the Bill does not deal with
it, or find any way out. Out of interest—if we have the
time—I want to know from all panel members whether you have any
suggestions about how we deal with competing rights. Is it your feeling
that the courts have been tending to take the line recently that
religion is at the bottom of the list, and if there are eight protected
characteristics, will the Bill leave us with religion clearly at No.
8? Richard
Kornicki: I think the answer is yes. There is
anecdotal evidence—I do not have details to cite—of the
number of court judgments that have seen religion as a lesser right
when compared to others. The worry is that the Bill sets up in a number
of areas issues where different rights will be in conflict and
different parties, both of whom are protected under the legislation,
may claim the protection of the same legislation against each other.
That is difficult.
It is regrettable that the Bill
gives absolutely no indication of the means by which those issues are
to be resolved. They have to be resolved, but at present every employer
and public authority will be left not knowing what effect the law is
intended to have. The result of that, inevitably, will be a chilling
effect on public practice to avoid the risk of legal
action. Authorities at
every level, with increasing gold-plating, will give themselves
precautionary rules to prevent anything from happening. That ultimately
means that public dialogue will be much less rich, and it will have a
suppressive effect on freedom of religion. It is important to remember
that article 9 of the European convention on human rights provides for
freedom of religion, not freedom of thought. We are talking about the
freedom to practise religion in
full.
Q
139The
Solicitor-General: As the Minister taking the Bill
forward, it is my strong view that there is no narrowing in the
definition. I would be pleased to follow the question that Mark Harper
put to you, to try to get a clearer answer. Perhaps it is best
expressed by saying that it is possible to have an exception. We are
talking about licensing discrimination, and consequently you will all
accept that that exception must be as narrow as possible. The
explanatory notes best encapsulate that by stating that employment for
purposes of an organised religion can exclude people if
“appointing a person who
meets the requirement in
question” —presumably
that is adherence to a
faith— “is a
proportionate way of complying with the doctrines of the
religion.” That is the
definition, which I do not think narrows down what went before. Perhaps
you could help me. I assume that nobody wants a disproportionate way of
complying with the doctrines of the religion. Why would you want more
licence than merely that which is sufficient to comply with those
doctrines? That is a two-pronged question.
Richard
Kornicki: We may be at cross purposes. We are looking
at schedule 9, paragraph 2(8), which gives a definition of employment
for the purposes of an organised religion. I understand that that was
not qualified under previous legislation. The Bill qualifies it quite
strictly in two sub-paragraphs that limit it to
“leading or assisting in the
observation of liturgical or ritualistic
practices”, or
alternatively “promoting
or explaining the doctrine of the
religion”. The
explanatory notes make it clear that a youth worker, for example, would
be excluded under the provision. This relates to requirements relating
to sex, marriage or sexual orientation only.
William
Fittall: May I add a further point to answer the
Minister’s question? The phrase “proportionate
means” in sub-paragraph (6) was not in the earlier regulations
on sexual orientation. Of course we do not want to argue that we should
have disproportionate freedom, but it must be asked what the effect of
this measure will be. This is a situation in which once complainants
have established a prima facie case, the onus of proof is put on the
defendant, which would be the religious organisation. Effectively
inserting a requirement that someone has to prove that that is
necessary—which is what the religious organisation
would have to do—would make this a higher case. In effect, you
have provided that for priests, bishops, imams and so on, that would be
okay, but we are saying that there is a wider range of jobs.
My director of ministry at
Church house has a big representational role. He is not out there
teaching the faith, but he is involved in organisation and selection of
people for ministry. The director of communications for the Church of
England has a representational role, and it would not be credible for
him to do his job if he had been married three times and caused a
scandal, or if he were a campaigning member for gay rights in a
sexually active relationship. Given the Church of England’s
position, that would not be consistent. Taken together, I think that
sub-paragraphs (6) and (8) make it more difficult for us to impose our
requirements. If that is not deliberate, perhaps we could discuss the
matter further.
The
Chairman: I must interrupt: I am sorry but we are limited
in time and I want to move the deliberations of the Committee to the
part of the Bill that deals with the impact on religious organisations
carrying out public functions. I call John
Mason.
Q
140John
Mason: On the question of public functions, the main
distinction seems to be about whether the public sector as a whole has
a duty to provide services. Within that, you could have lots of diverse
groups providing those services, or does each individual group have to
do everything? For example, the health service provides for abortions,
but individual members can be involved in that or not. Similarly, with
adoption agencies, schools or other organisations with public duties,
do you feel that it is necessary that everybody deals with everything,
or is it possible to have separate groups providing different
ways?
Andrew
Copson: Our view is that there will always be, to
some extent, a mixture of provision in that way. There will be some
clear needs, especially locally and in particular communities, to
provide services by a certain group for a certain group. That is the
way that a public authority could satisfy their obligations, but
equally it might be the case for services that are delivered or
co-ordinated on a national level that they are provided in the other
way. However, I do not think that the Bill tends in one direction or
the other. Our concern is far more likely to be that if organisations
such as religious ones are providing a public function, they are held
to the same non-discrimination rules as secular or state agencies and
organisations that are performing public functions. That is something
that the Bill does not fully do at the moment, because it allows
religious organisations to discriminate in employment and in the
provision of services, even when they are providing a public service
under contract. We would say that they should not be allowed to. We
make no judgment about whether it is right or wrong to allow religious
organisations to contract to provide public services, but we say that
if they do so, they should be subject to the same requirements as
everyone
else. William
Fittall: We want to say that you need to proceed with
a bit of care in this area. If you look at schools, you have 1 million
children in Church of England schools and many people in Roman Catholic
schools and other faith schools. That is necessary,
accepted by the Government, and the Bill allows it to continue. The
distinctive ethos of those schools should be preserved. Yes, there is
public money going in, they are part of state education and they have
to observe a lot of public requirements, and quite rightly so, but the
notion that the Catholic, the Anglican or the Jewish identity of the
school should be safeguarded by requiring that the head teacher is of
that particular faith does not seem at all a strange proposition. The
Government recognise that, and that is preserved by the Bill, although
I know that the British Humanist Association is not happy with that.
However, on that score, we want the Bill to remain as it is. If you are
going to have faith schools as part of the state system, you need to
allow them to preserve their
ethos. Jon
Benjamin: It is self-evident that charities and
voluntary groups, be they religious or otherwise, make a huge
contribution to the welfare services in this country. My concern,
again, is about apparent conflicts and managing those conflicts and
interpretations. If
one takes the example of a care home for elderly Jewish people or a
battered women’s refuge, clearly, they are providing a service,
possibly because of the vulnerability of the beneficiaries, for a
particular group or minority, religious or otherwise. They are
providing a service. They may be doing it at some cost to themselves,
therefore relieving the state or the local authority of that burden,
but there is concern that the public duty of a local
authority that procures those services will be interpreted differently
from the exceptions that are quite legitimately open to the service
provider. It is a matter of helping the people who will apply this to
understand that, notwithstanding their public duty in terms of
discrimination and equality, it is legitimate for a particular group to
provide a care home for elderly Jewish people, battered Muslim women or
whoever it may be. That conflict needs to be managed and
explained.
Q
141Dr.
Harris: John Mason raised the question of opt-outs and
conscientious objection, which exist in statute for abortion. Is it
your contention, Mr. Kornicki, that there ought to be more
opt-outs for people performing public functions—for them not
have to do certain things on the basis of their conscience, religious
or
otherwise? Richard
Kornicki: What you are suggesting is a new approach
to issues in the Bill. I would start from somewhere different, if I
may. We are looking for a way in which we can recognise the ability of
people to live their lives in accordance with religious teachings as
they have done for a very long period, while being consistent with the
requirements that the Government are now making. There is a balance to
be struck here; in different areas a different approach might be the
right answer. Opt-outs might be one answer for some issues—they
exist already. There may be other legislative approaches which would
achieve the same end, which is what we are concerned
about.
Q
142Dr.
Harris: One opt-out, and only one, exists in respect of
IVF and abortion. There are calls—amendments have been
tabled—which argue that doctors should be able to say, “I
am not going to treat Muslims, because my religion will not let
me” or “I am not going to treat unmarried women who come
to me wanting contraception.” Is that the sort of thing that you
would support?
Richard
Kornicki: Any professional person should have the
right to act in accordance with their conscience. That is a fundamental
human right that applies to
everybody.
Q
143Dr.
Harris: So you are not making it compulsory—I
accept that. But are you looking for the right of doctors and nurses to
say that they are not going to treat gay people, unmarried women, or
Muslims if their religion does not like them to do that? Is that the
point—
Richard
Kornicki: No, it is not. To pick up your
example—one has to go back to sources— paragraph
2358 of the catechism of the Catholic Church says that homosexual
people “must be treated
with respect, compassion and sensitivity. Every sign of unjust
discrimination in their regard should be
avoided.” That is what
the Church teaches.
Q
144Dr.
Harris: I would certainly endorse that. May I ask a
separate question of Mr. Benjamin? There is an exemption in
the Bill that allows religious organisations—even, as
Mr. Copson said, those performing public functions—to
discriminate against people who are seeking to access those public
functions, based on their religion. You gave an example of a care home.
How do you feel about a Catholic adoption agency saying that
prospective Jewish adoptive parents need not
apply? Jon
Benjamin: If an adoption agency is catering for
Catholic families and helping them to have families and raise them in
the Catholic ethos then I do not see a problem. There are agencies out
there that will help all sorts of people—gay couples,
whoever—to adopt and no one needs to feel that they have missed
out. If there is a Jewish adoption agency providing a service for
Jewish people, there is equality there. That is real equality, because
people have a choice: they can go to the agency that works for them and
their way of life.
Q
145Dr.
Harris: My last area of questioning concerns harassment.
Can I ask Mr. Fittall whether he thinks that, in terms of
the Bill, it is reasonable that children in school should be exposed to
unwanted conduct if they are gay—conduct, for example, that
violates their dignity and creates an intimidating, hostile, degrading
or humiliating environment? Can you picture any circumstances where you
think that that would be acceptable in schools, on the grounds of
sexual orientation, in the terms that I have
given? William
Fittall: There are two questions there. One is
whether there are any circumstances in which it is right, and the
second question is whether it should be made against the law. I
entirely agree with you that there are no circumstances in which that
should happen. However, as we have discovered after long debates on the
harassment issue—in relation not only to employment, but to
services and facilities and to harassment on religious or sexual
orientation grounds—you quickly get into significant difficulty,
because the definition of harassment has an objective element and a
subjective element. You have to ask yourself the wider question: how
far do you want the law to trespass into territories where good conduct
is best promoted by example and encouragement, rather than by the force
of law?
Q
146Dr.
Harris: I accept that, but do you accept that there is a
difference between adults seeking to book a hotel and children who are
a captive audience in school, where we know that there is a
problem—which none of us would support and I am not accusing you
of supporting this—of homophobic bullying, and being subjected
to an intimidating, hostile, degrading or humiliating environment in
school in front of their peers? By the way, I left out the word
“offensive” because that is highly
subjective.
William
Fittall: Homophobic bullying is disgraceful, and a
lot needs to be done. Church schools do their best to tackle it
whenever it arises. It is a highly contested area. Let us be under no
illusion. The whole question of gay rights remains highly politicised.
Do you want to bring litigation into such matters or are they best
resolved by other means? Our contention is that bringing the law into
that area will not be particularly
helpful.
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