Dr.
Harris: I will give way in a moment, if I may, to the hon.
Gentleman who asked the original question. I want to ask him whether he
understands the point that I am making.
Employers
want to be able to discriminate on the basis of religion, not on the
basis of sexual orientation, where they have less scope, for reasons
that we will come on to discuss. The person may not fulfil the
religious criteria that they are laying down, because their lifestyle
may be incompatible with religious orthodoxy. May I ask the hon.
Gentleman if he understands the point that I am
making?
Mr.
Harper: I thank the hon. Gentleman for that explanation. I
am clear about the point that he made and, now that he has made it more
clearly, I can see that I do not agree with it. The example that he
chose was a particularly poor one. As a Roman Catholic, I should
declare an interest, but I do not think his point was well made. I do
not know of any mainstream religion that actually discriminates, or
says that someone cannot be a believer in that religion because of one
of the protected
characteristics. There is nothing in Catholic teaching that says someone
cannot be a Roman Catholic if they are
gay. On
the hon. Gentleman’s particular point about employment, which we
will come on to later, the teaching does say that if, for example,
someone wants to be employed in a particular role within that Church,
their behaviour—what they do, not what they are—has to
meet certain standards. Those are two very different things. That is
why I was having trouble following the meaning of his amendment 215,
which talks about someone having protected characteristics and not
being able to be part of a religion, rather than carrying out certain
behaviours, which do not necessarily follow from that protected
characteristic.
Dr.
Harris: First, I am pleased that the hon. Gentleman
understands my point. I accept that one can make the differentiation. I
just seek to make it clear that a test on conduct has to be argued on
that basis and not on the basis of religious criteria. The point I am
making is that we will see exceptions, based on sexual orientation or
conduct issues, that are entirely separate and, in respect of
discrimination allowed in employment by religious organisations on the
basis of sexual orientation, far narrower than those allowed on the
basis of religion or
belief. I
could go into where that is in the schedules but the hon. Gentleman
should take it from me that there is more scope—there are fewer
qualifying conditions to be met—in order for an employment
exemption to be made on the basis of religion than sexual orientation.
I think one can understand why, and I am not opposing those per se. It
is important that the religious criteria, which can be used in more
cases, are not used as a proxy for discrimination on the basis of
sexual orientation, or sexual practice, which is closely linked to
sexual orientation.
John
Mason: I rise to follow on from the point made by the hon.
Member for Forest of Dean. I wonder whether the hon. Member for Oxford,
West and Abingdon would accept that, for most religions, including
Christianity, Islam and Judaism, sexual behaviour is dealt with within
the religion. There are certain standards that are expected. The
religion also goes into people’s attitudes, but the main point
is that sexual behaviour is dealt with and is a concern to the major
religions.
Dr.
Harris: Indeed. I do not think that we can change the fact
that it is a concern. However, we are talking about the law of the
land, and I am clear that what I want to be confirmed is that, if
people want to discriminate against others in a post or in a religion,
on the grounds of sexual orientation, they need to do so on the basis
of the framework set out in the schedules for sexual orientation and
not seek to do it on the basis of religion—I will go into why
that is in a moment.
12
noon The
issue that the hon. Gentleman has just raised underlines the point that
many religious people hold the view that one cannot, in some
orthodoxies, for example, be a Muslim if one is gay or is having gay
sex. I am not
seeking to castigate them for doing that—they
are entitled to their view—but we have to make sure that people
do not suffer in employment and other areas from the pursuance of that
view. That should not be provided
for. Mr.
Boswell: Can the hon. Gentleman clarify, to me at least,
whether he is prepared to consider that sexual behaviour, as opposed to
sexual orientation, could, in certain circumstances, be a legitimate
interest for religion? If he is saying that the religious hierarchies
are unable to make judgments, on the basis of their moral view, about
what is, or is not permitted by way of behaviour, as opposed to
orientation, we should know that that is his position, which I do not
share.
Dr.
Harris: I refer the hon. Gentleman to schedule 9, if I
may, because it is important to understand what exemptions exist. I am
not arguing against them. I am arguing that the exemptions should be
used in the right way, dealing with the right thing. Paragraph
2 of schedule 9, on page 181 of volume II of the
Bill, is headed, “Religious requirements relating to sex,
marriage etc., sexual orientation.” In sub-paragraphs (1) to
(8)— sub-paragraph (8) has been mentioned
previously— paragraph 2 sets out the basis upon which
sexual orientation can be used as a basis for discriminating in
employment and it is a good example. One can see that that is
limited—an issue that we dealt with in Committee—by
sub-paragraph (8), which states that employment, where
allowed, “is
for the purposes of an organised religion only if the employment wholly
or mainly
involves— (a)
leading or assisting in the observation of liturgical or ritualistic
practices of the religion,
or (b)
promoting or explaining the doctrine of the religion (whether to
followers of the religion or to
others).” My
view is that the Government are right to put in statute the narrow
definition of that exemption that is allowed for in the original
directive and stems from the Amicus judgment. The Government won that
in a positive way for the people making the claim because the view was
that the provision in the original employment discrimination
regulations in 2003 had to be interpreted
narrowly. I
draw the attention of the hon. Member for Daventry to paragraph 3 over
the page, where there is a separate exemption headed, “Other
requirements relating to religion or belief.” It is a short
paragraph, where there is not that restriction on what can be done.
Therefore, an organisation with an ethos can put down “ an
occupational requirement” which
is “a
proportionate means of achieving a legitimate
aim” or
similar wording, as that itself is subject to amendment. Paragraph 3,
sub-paragraph (c) states
that “the
person to whom A applies the requirement does not meet it (or A has
reasonable grounds for not being satisfied that the person meets
it).” That
is broader. My point is that, if someone wants to discriminate against
a person on the grounds of sexual orientation, they need to fit within
paragraph 2, rather than paragraph 3.
The reason
that I raise that concern is that in evidence to us—both oral
and written—the Catholic Bishops Conference states, for example,
in written evidence E14 that it wants to be able
“to exclude from
a Parish position dealing with young people a candidate who
had”— and
it goes on to describe something to do with behaviour. A parish
position goes wider than someone dealing just with liturgy, as set out
in sub-paragraph (8). The Catholic Bishops Conference is saying that it
wants more room for manoeuvre. It gave the example of someone
“who had
divorced their spouse, civilly re-married and created two broken
families within the same Parish
community.” We
do not necessarily need to go into that example, although that is a
rather subjective way of looking at someone’s circumstances.
However, in its oral evidence, the Catholic Bishops’ Conference
says that it might wish to exclude from employment someone who is
having sex outside marriage. My point is that it should not be able to
do that on the grounds of the religious
exemption.
John
Mason: Does the hon. Gentleman accept that it would be
strange if, for example, a youth worker for a religious organisation
such as a Church were teaching that organisation’s teachings to
young people, but living a life that was the opposite of what they were
teaching? Surely, the way in which they were teaching would lose
credibility.
Dr.
Harris: For obvious reasons, I do not want to go too far
into the wording of the schedule, but that is dealt with in
sub-paragraph (8), which says that if the employment
“wholly or
mainly involves...promoting or explaining the doctrine of the
religion (whether to followers of the religion or to
others” the
person is entitled not simply to apply an indirect condition saying,
“Don’t have gay sex,” but to discriminate on the
basis of sexual orientation, where it is otherwise justified.
Sub-paragraph (8) is what should be relied on. The hon.
Gentleman’s example could fit that, and that is what the
organisation should use. However, one could not apply that to any youth
worker doing anything, because that would not necessarily
“wholly or mainly” involve
“promoting or
explaining the doctrine of the
religion”. Youth
workers employed, for example, by the Catholics do a great a job. It
will come as no surprise when I say that that is not simply because
they promote or explain the doctrine of their religion, but because of
the important wider work that they do, which is pastoral and not
necessarily religious—indeed, many of their clientele will not
be religious at all, but will appreciate their
intervention.
Mr.
Boswell: I am prepared to concede that there might be
cases in which I have some sympathy for what the hon. Gentleman is
arguing. Nevertheless, will he at least consider the possibility that
if conduct that is scandalous or an affront to the teachings of the
religion becomes public knowledge, that is likely to make it difficult
for a youth worker or somebody else in a pastoral position to discharge
their responsibilities, even if those are not within the rubric of
wholly, mainly or primarily
“promoting or
explaining the doctrine of the religion”?
Something that is
clearly contrary to what is taught is, by itself, offensive and may be
subversive of the organisation’s
teaching.
Dr.
Harris: The hon. Gentleman puts his finger on the nub of
the whole question of sexual orientation discrimination in the Bill as
regards religious organisations.
Mr.
Boswell: The hon. Gentleman says that this is the nub, but
he also used the words “sexual orientation”. Much of the
concern of the organised Churches and others relates to sexual
practice, rather than orientation. I just wanted correct
him.
Dr.
Harris: It is important that I deal briefly with this
question now because it comes up in the definition of sexual
orientation in another group of amendments, and I do not want to queer
the pitch, if hon. Members will excuse the expression.
At paragraph
29 of the Amicus judgment, the judge, the honourable Mr.
Justice Richards, said:
“Part
of the background to the wording of regulation 7(3),”
which was at
stake, “and
one of the matters that will need to be considered in examining the
challenge to that provision, is a distinction drawn between sexual
orientation and sexual
behaviour”— he
italicised the words “orientation” and
“behaviour”. He continues:
“As
regards the protection conferred by the Convention, however, I do not
consider there to be any material difference between them. Sexual
orientation and its manifestation in sexual behaviour are both
inextricably connected with a person’s private life and
identity.” That
is the subject of a later amendment, but it needs to be understood that
I, and more importantly case law, do not recognise that distinction in
discrimination law, as opposed to people’s opinions. Whether the
Government agree is critical, and we will deal with that when we debate
another group of amendments.
John
Mason: The hon. Gentleman is basically saying that sexual
orientation and sexual practice are so closely linked that they cannot
be separated in reality. Does he also accept that religious belief and
religious practice are so closely linked that they too cannot be
separated?
Dr.
Harris: It is not what I think, but what judges who have
interpreted employment regulations, the EU directive and the human
rights convention think. I quoted a judge. Judges have recognised that
sexual orientation and its manifestation—not any sexual
conduct—are inextricably connected with a person’s
private life and identity such that one cannot draw a
distinction.
Case law may
not show that judges have taken a similar view on religion. We could
head down a series of paths had they done so. We will deal with that
question separately.
Mr.
Harper: The reason why I have tried to probe the hon.
Gentleman on what amendment 215 meant is this: given the nub of his
argument about the nature of discrimination and employment and that we
are going to spend quite a lot of time talking about schedule 9, would
it not be better to deal with the issue there, rather than trying to
introduce a sweeping amendment about the definition of religion? I am
not aware of any mainstream
individual who is outwith a religion because of one of the protected
characteristics, as opposed to their practice and
conduct.
Dr.
Harris: First, I concede the point that the amendment may
not be the best drafted—I refer the hon. Gentleman to others on
the amendment paper that were not selected. The debate may well be
better placed or dealt with by a parliamentary agreement on the
intention of the measure.
On the second
point, I think that the hon. Gentleman has made a concession. He said
that some people believe that sexual practice is a fundamental tenet of
religion that has to be followed. My point was that convention law, and
I believe our discrimination case law, make it clear that the
manifestation of sexual orientation, whether heterosexual, homosexual
or bisexual, is inextricably connected with sexual orientation. We are
saying that in law, religious organisations are not entitled to justify
religious discrimination to make a distinction between sexual
orientation and sexual
practice. Sandra
Osborne (Ayr, Carrick and Cumnock) (Lab): Although I
accept that many organised religions do not accept homosexual sexual
behaviour as being within their doctrine, it is contested, and many
Christians do not agree with that position. The General Assembly of the
Church of Scotland has recently voted to endorse a Church of Scotland
minister who is currently living in a gay relationship and it is
looking at the general issue. What would be the implication of a Church
of Scotland decision to accept that position
generally?
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