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Session 2008 - 09 Publications on the internet General Committee Debates Equality Bill |
Equality Bill |
The Committee consisted of the following Members:Alan Sandall, Eliot Wilson,
Committee Clerks † attended
the Committee Public Bill CommitteeTuesday 16 June 2009(Afternoon)[Ann Winterton in the Chair]Equality BillClause 12Sexual
orientation Amendment
moved (this day): 217, in
clause 12, page 8, line 16, at
end add— ‘(3) Sexual
orientation includes manifestations of that sexual
orientation.’.—(Dr. Evan
Harris.) This is to
put clearly into statute existing case law stemming from eg Amicus vs
Secretary of State where it was held that a religious organisation
could not avoid sexual orientation discrimination by referring to
lifestyle matters which were a lawful and direct expression of sexual
orientation. 4
pm
The
Chairman: I remind the Committee that with this we are
discussing amendment 220, in
clause 13, page 9, line 27, at
end insert— ‘(7A) If the
protected characteristic is sexual orientation, A discriminates against
B if A treats B less favourably than A treats or would treat others on
the basis of a manifestation of B’s sexual
orientation.’. This is
to make explicit in statute the case law (eg from Amicus
vs Secretary of State) which holds that discrimination against gay
people on account of their gay life style or camp appearance (for
example) is direct
discrimination. Dr.
Evan Harris (Oxford, West and Abingdon) (LD): I am pleased
to welcome you to the Chair again, Lady Winterton. In the 20 seconds
that I had before we adjourned our earlier sitting, I said that I
thought we could get through the amendments quickly, as the main point
behind them had been debated to a significant extent in our previous
sitting.
The two
amendments are essentially equivalent. One amends clause 12 and would
provide that sexual orientation includes manifestations of sexual
orientation. Another, possibly slightly better drafted amendment,
starred amendment 237 in the amendment paper, amounts essentially to
the same thing, which is that sexual orientation
‘includes
manifestations of any such sexual orientation.’.
Amendment 220 on page
147 of the amendment paper amends clause 13 and deals with direct
discrimination.
I explained
earlier that the concern was to put the provisions clearly into statute
law with the point of probing what the case law is in that respect, not
only because it is right and proper that manifestations of sexual
orientation are—to quote the judge
again—“intimately wrapped up” with one’s
sexual orientation, but because it will help to make it clear to the
public, and particularly to employers, that they cannot rely on a
distinction between sexual conduct where it relates closely to sexual
orientation and sexual orientation itself.
I
explained that there is a request, bordering on an expectation, that
employers will be able to do so when I referred to memorandum E14,
which we received from the Catholic Bishops Conference. The memorandum
says that the Catholic Bishops Conference would want to apply a conduct
test, even for, it is implied,
“a residential
caretaker post if it involves routine contact with the local Catholic
community.”
It went on to say
that
“there is a
whole range of posts, paid or voluntary, where it is essential that the
Church has the right to prefer a candidate whose life is in accordance
with its ethos; these might include, for example, youth workers,
members of marriage preparation teams, and parish secretaries. What all
these have in common is a pastoral, representative, or functional role
where their effectiveness in the post for which they are being paid
would be severely limited if their life were openly at variance with
the teachings of the
Church.” That
is an interesting phrase. I do not know whether “openly”
implies that it would not be an issue if they kept their private life
to themselves, or whether the employer would seek to investigate their
private life.
John
Mason (Glasgow, East) (SNP): Does the hon. Gentleman
accept that the link between sexual orientation and manifestation
varies? For some people, there is little gap between them, but for
other people, particularly in the Catholic Church, where nuns and
priests take a vow of celibacy, there is a large and distinct
gap.
Dr.
Harris: I do not want to repeat everything that I
explained previously, but where a post falls within paragraph 2(8) of
schedule 9—that includes proselytising roles such as nuns and
priests, any representative function and any post predominantly
involved with liturgy or the teaching of theology—an
organisation would be entitled to discriminate on grounds of sexual
orientation. That is not the question. The question is whether, even
where those requirements are not met, such organisations can seek to
say that they are discriminating not on grounds of sexual orientation,
but mainly on conduct. I think that I have clarified that there is such
an expectation in the written evidence and elsewhere.
It is
important to stress the examples given by religious organisations in
the Amicus case. In his judgment in Amicus and others v. the
Secretary of State, given on 26 April 2004, the honourable
Mr. Justice Richards gives examples of where
religious organisations are very clear—and, to their credit,
they are very clear and consistent on this point—that they want
to cover conduct without falling foul of the normal sexual orientation
provisions. For example, in paragraph 33, he quotes Roger Smith, who
was then, and might still be, head of public policy at Christian Action
Research and Education,
stating: “Any
inappropriate sexual activity on the part of an employee would be
considered grounds for dismissal. This would include behaviour
amounting to adultery from a married member of staff, and any other
inappropriate sexual conduct by unmarried members of staff. This would
include an unmarried employee’s sexual activity with a member of
the opposite sex or with a member of the same
sex.” It
is clear that the wish is to discriminate on grounds of homosexual
activity. Similarly, in paragraph 34, Mr. Justice
Richards cites Mr. Martin Eden, director of
strategic development for the Evangelical Alliance,
saying: “We
affirm God’s love and concern for humanity, including those with
an orientation towards people of their own sex, but believe homoerotic
sexual practice to be incompatible with His will, as revealed in
scripture.”
In paragraph
35, Hilary Reeves, director and chairman of the trustees of the
Christian Schools Trust, talks about teachers, who are clearly not
priests:
“The
teachers’ own lifestyle must be a righteous one, as defined
above. That must, by definition, exclude from being a teacher in one of
our schools a person whose lifestyle is known, or is reasonably
believed, to include unrighteous acts as listed
above.” Included
in that
is “sexual
intercourse with a person other than one’s spouse outside
marriage, with a close member of one’s family, or with a person
of the same
gender.” Leaving
aside the comparison between lawful sexual activity with someone of the
same sex and the unlawful activity of incest, and the equivalence,
which those organisations are entitled to make, between homosexual
activity in a faithful relationship with adultery, it is clear that
they wish to include such conduct as grounds for dismissal. I am asking
in both of these amendments for that to have to be justified on the
grounds of sexual orientation.
During the
oral evidence from William Fittall of the Church of England, when he
was drawn on this matter, he said
that “it
is reasonable that restrictions—whether they be on marital
history or whatever—can be part of the
requirements.”————[Official
Report, Equality Public Bill Committee, 9 June 2009; c. 69,
Q127.] That
is, requirements which are imposed on people on religious grounds, the
sort of requirements in schedule 9, paragraph 3. I asked him whether he
meant gay people, and his answer, which can be read in columns 69 and
70, was clear that, even if it did not mean homosexuality, it did
include homosexual conduct.
I have
already read the ruling of Mr. Justice Richards
in the previous debate, so I will not repeat that, but he makes clear
in his conclusions, in paragraph 119 of his judgment, his view, which
was not contested by either side,
that “the
protection against discrimination on grounds of sexual orientation
relates as much to the manifestation of that orientation in the form of
sexual behaviour as it does to sexuality as such.”
He says that he has
already mentioned that when looking generally at the fundamental rights
issues in the case.
I hope,
therefore, that the Committee recognises not only that there is a call
for sexual conduct to be grounds for dismissal or a detrimental
treatment, and to be seen as separate from sexual orientation, but that
the case law is clear that that is not permitted. Furthermore, we
should argue on principle as a Committee, and the House should take the
view—
Dr.
Harris: No. That is exactly the point I am making. I am
asking that the statute make it clear what existing case law is,
because that case was taken to clarify the statute. In a sense, the
statute was clarified by that judgment. It was in the High Court, so it
has precedence, but clarification would be helpful because, despite the
judgment, there is still the assumption, or the request, that this sort
of discrimination be
permitted. I
think that the case law is clear. The intention of the Government at
the time of the employment regulations on sexual orientation was clear.
Even if it was not, the judge agreed with the Government’s
position in his conclusions on the case. The Government did not appeal
on that point. The current intentions of the Government are clear on the
point, but because this is a live issue and there is public debate, it
would be wise to make that clear in statute as well. As I have said,
this is not an attack on the beliefs of Churches, which are entitled to
their beliefs. It is about protecting the right of gay people not to be
discriminated against, in employment as well as in other areas, on the
grounds of sexual orientation under the proxy of their conduct not
being protected under sexual orientation legislation. That is what
these probing amendments seek to make
clear. Mr.
Mark Harper (Forest of Dean) (Con): It is good to see you
in the Chair this afternoon, Lady Winterton. You missed our exciting
debate on this very subject this morning. We, however, did not, so I
will be
brief. The
only point that I would like to make at this stage is that, as we did
this morning, we appear to have quickly moved on to schedule 9, which
we will debate in due course. I will only mention it briefly, Lady
Winterton, so as not to test your patience. It seems to me that all the
points that the hon. Member for Oxford, West and Abingdon has made,
most of which I do not agree with, we can debate when we get to
schedule 9; we can debate paragraphs 2 and 3 of that and the extent to
which organisations can do the various things that he is suggesting
they can. It seems that, under both this clause and the previous one,
he is trying to pre-empt that debate and to set down much wider
conditions than are necessary for this
case.
Dr.
Harris: I am interrupting the hon. Gentleman, although he
did not interrupt me. This does not apply just to schedule 9. I was
using that as the best exemplar because in the provision of services
there are restrictions on discrimination on the grounds of sexual
orientation. I would not want to see, and I hope the Government would
not want to see, people discriminating in the provision of services on
the grounds of conduct that is intimately related to sexual orientation
by claiming that it is not sexual orientation discrimination. In order
to avoid having this debate under both those schedules and where it
applies elsewhere, one has to have it under either the definitional
clauses or under the clauses that describe direct discrimination. I do
not think that there is any alternative, otherwise I would certainly
have raised that when we considered the schedules as an
alternative.
Mr.
Harper: I am grateful to the hon. Gentleman for clarifying
what he is trying to do. The reason I think that what he is doing is
faulty relates to the points that he is making in this debate, using
schedule 9 as an example of why his amendments are justified. Having
listened carefully to what he is saying about the paragraph in schedule
9 that details other requirements relating to religion or belief and
what that would or would not allow someone to do, I am not clear that
organisations would be able to do what he says they would be able to
do. The wording of the schedule will not allow people to do what he is
complaining about. Therefore, I do not think that his justification for
these changes is sensible. I am just picking up his one point. I do not
wish to sound like a broken
record. I
also want to echo the point made by the hon. Member for Glasgow, East.
From a religious perspective, referring to the particular Church he
mentioned, the
Catholic Church, there clearly is a difference between sexual
orientation and sexual practice, particularly in the roles of a
proselytising nature, priests and nuns and so forth, given the vow of
celibacy that priests and nuns take. For that religious organisation,
there is a clear difference and I would have thought that a religious
organisation above all would be capable of seeing the difference. I am
not persuaded by either the lengthy discussion we had this morning or
by the hon. Member for Oxford, West and Abingdon’s argument that
these two amendments should be carried by the Committee. My final
point, on which I am sure the Solicitor-General will be in agreement,
is that I am clear that he does not speak for the
Government. 4.15
pm
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