John
Mason: The hon. Gentleman used the word
“oath”, which I think is interesting. Does he agree that
we are looking for a pluralistic society? One example of that is that,
in the courts and in this place, one can either take an oath or affirm.
That gives a bit of flexibility. I do not agree with oaths as a
religious person, although other religious people do, and people of no
religion might also prefer to affirm. Is that not the kind of model
that we should be looking for—one that provides some come and
go, some
flexibility?
Dr.
Harris: I do not think that compliance with the oath is
the relevant factor; it may just have been terms of employment. While I
share the hon. Gentleman’s view about oaths, I do not want to be
drawn down that path as I do not think that is the key point in that
case. The
president of the Employment Appeal Tribunal went on to
say: “As
to considerations of policy, direct discrimination of course cannot be
justified.” That
is a key point and it provides the reason for me raising it with
relation to the clause. As one can never justify direct discrimination,
it is important that these cases are not found to be valid claims of
direct
discrimination. The
president of the tribunal
continued: “If
the Tribunal were right to say that the fact that the claimant’s
conduct was the result of her religious beliefs meant that she was
being discriminated against on religious grounds, the employer could
never justify any refusal to accede to an employee’s demands
that he should be permitted to manifest his religious beliefs, however
bizarre they may be. For example, an employee who refused to work on a
particular day or days of the week for religious reasons, or who
insists on praying at various times in the day, or who submits that
carrying out various duties is incompatible with his or her religious
doctrine, could in all cases be entitled to insist on doing these
things and the employer would be obliged in all cases to accede to
these
demands.” In
other words, there is not the objective test that is allowed in claims
of indirect
discrimination. The
president concludes on that point, making reference to Ms Mountfield,
counsel for the
borough: “As
Ms Mountfield put it, the religious belief would be a solvent
dissolving all inconsistent legal obligations owed to the employer.
That plainly cannot be right. Indeed, given in particular the fact that
beliefs may cover a vast range of subjective opinions, the consequences
would be
extraordinary.” I
hope that the Committee understands my particular concerns about
this. I
finish on the point about the European convention on human rights. Lord
Hoffmann, in Regina v. Denbigh High School, another school
uniform case, is cited in paragraph 122 by the president of the
EAT: “Article
9 does not require that one should be allowed to manifest one’s
religion at any time and place of one’s own
choosing”. It
has been argued that, regardless of what our discrimination law says,
this should be claimable indirect discrimination to preserve the right
to manifest one’s religious belief in accordance with article 9,
but as members of the Committee will know, the right to manifest
religious belief under paragraph 2 of article 9
is qualified, unlike the right to hold the belief itself and to believe
what one wants to
believe. The
president, in paragraph 127 of his judgment, quotes from the judgment
of Justice Munby in R (E) v. Governing Body of JFS—Jews
Free School—and others, an interesting judgment on other
matters. The president says
that “it
is important to realise that reliance upon religious beliefs, however
conscientious the belief and however ancient and respectable the
religion, can never itself immunise the believer from the reach of the
secular law, and invocation of religious beliefs does not necessarily
provide a defence to what is otherwise a valid claim. Some cultural
beliefs and practices are simply treated by the law as going beyond the
pale.” That
is not a criticism of religion or of the lady in the Ladele case; it is
just a statement that we cannot operate proper employment practice if
people can claim direct discrimination on the basis of not being
allowed to do something that their religion tells them to do, having to
do something that it tells them not to do or not being prohibited from
doing something it tells them not to do, which is not what the employer
wants them to
do. I
accept that the phrasing of the amendment might not be appropriate, but
it is designed to be not only an antidote to the point made in
amendment 36 and new clause 3 by the hon. Member for Glasgow, East but
an invitation to the Minister to give her view on whether the
Employment Appeal Tribunal—which, unlike some other bodies, sets
precedents—is appropriate in this
respect. I
have not had time, nor do I think I have the competence, to go into the
two-stage test that the hon. Member for Glasgow, East quoted in detail,
but it addresses the same sorts of issue. It may well be considered in
another place if there is any doubt about the
matter. To
save time, I will deal with amendment 36 and new clause 3, because I
know that we are keen to make progress. I note that amendment 36 argues
that “less
favourable treatment includes placing tighter restrictions on
expression related to religion or belief than on expression not related
to religion or
belief.” I
do not think that that is helpful, because it is generally in cases of
religion and belief that tensions between the strands arise. It is
unusual for someone to manifest their race in a way that engages the
rights of non-discrimination of people in other strands. It is one of
the features of religion that its beliefs and manifestations can cause
tensions in other strands, and it is our job, and the job of Parliament
more broadly in dealing with the Bill, to get that balance
right. I
hope that the hon. Gentleman accepts that such matters arise in
religion, and religious people must be able to make a claim of indirect
discrimination, but that direct discrimination is not the place for
it. New
clause 3 is of even greater concern. It
says: “A
public authority shall permit personal religious expression by those
working for the authority to the greatest extent possible, consistent
with requirements of law and the interests of workplace
efficiency.” Obviously,
the Minister will give her own response, but I think that the argument
will be
that “consistent
with requirements of
law” makes
the new clause essentially unnecessary, as the law is what we are
debating. If the provision were to mean anything, it would, almost by
definition, fall outside the requirements of the law.
The new clause
needs to be considered, but why should personal religious expression
trump anything else, if that is the intention of the new clause? The
worry is what the new clause would mean and that the hon. Member for
Glasgow, East is essentially saying that there could be a general right
of conscientious objection for doctors not to prescribe contraceptive
pills to women who are not married, not to treat patients who have
alcohol problems on the basis of a religious objection to alcohol and a
series of other
things. I
strongly believe that that should not be permitted in the delivery of a
public service. It should not be allowed in the medical profession
beyond the existing statutory exemption that applies to abortion
services, which I support. Otherwise, we will end up with a broken-up
health care system, where individuals have to shop around for someone
willing to give treatment that complies with their religious
belief. The
object of new clause 3 is something we should resist absolutely, for
the reasons that I have given. What effect it would have in practice is
a moot point, given the
caveat “consistent
with requirements of
law”. I
look forward to hearing the views of other members of the
Committee. 5.45
pm
John
Mason: Thank you for the opportunity to speak under your
chairmanship, Lady Winterton. As I did this morning, I want to make it
clear that when I speak on religious matters, I am generally speaking
on my own behalf, not that of my party.
I tabled the
amendments so that the Committee would have an opportunity to discuss
the place of religion in our society. To pick up on the final point
made by the hon. Member for Oxford, West and Abingdon, it is not my
desire for religion to trump other protected characteristics, but it is
my desire that religion should not be trumped by them.
Amendment 36
would make it clear that it is a form of direct discrimination to treat
religious speech less favourably than non-religious speech. They should
be treated equally. It would reinforce freedom of speech for religious
people by requiring that any restrictions imposed on free speech are
not biased against religion. I hope that most hon. Members will think
that that sounds fair. The question is whether it is
necessary. I
would like to refer to two cases that have not been mentioned so far.
The first is that of a woman called Caroline Petrie. She follows the
Christian faith and works in Somerset as a nurse. In December last year
she was suspended from work because she offered to pray for a patient.
Although the patient was not upset by the offer, she mentioned it to
another nurse, who reported the matter. Mrs.
Petrie was subsequently accused of breaking nursing guidelines by
failing to
“demonstrate a
personal and professional commitment to equality and
diversity.” There
was a degree of publicity about the case, and eventually the primary
care trust invited the nurse back to work. Is it really harmful for a
nurse with faith, who cares about her patients, to offer to pray for
them? Surely that is not so unacceptable.
Dr.
Harris: I do not want to be drawn too specifically into
that case, but I accept that it is germane to the amendment. From the
point of view of a professional body, it is inappropriate for a health
care professional to seek to impose their personal views on a patient.
That is stated clearly in the general medical code of practice for
doctors, “Duties of a
doctor.” There
is nothing to stop a nurse praying for a patient. It does not have to
involve the patient’s knowledge, and as I understand it,
religious people would argue that it does not weaken the effectiveness
of a prayer if the person prayed for does not know about it. Neither is
it inappropriate for someone who is religious to accede to a request
made to them by a patient if they so choose. However, in strict,
professional terms, it is not appropriate for them to initiate that
conversation, as that is not the job of a health care practitioner but
the job of a priest. I do not understand why the nurse in this case,
who as I understand it had engaged in that practice before and had been
warned about it, could not desist from offering unsolicited prayers to
patients. There is freedom of belief and freedom of prayer, but there
is not the freedom to impose one’s views on a
patient.
John
Mason: I suppose that I have a problem with the
phrase, “seek to impose.” I do not think that
Mrs. Petrie was seeking to impose anything. She
was offering another skill that she had. A similar example would be her
offering some extra bit of care to the patient—if she was an
expert in massage, for example. However, I would have thought that
offering is slightly different from seeking to
impose. The
idea that prayer is only the job of a priest takes us down an
interesting route as far as religion is concerned. With regard to my
background, we did not believe in priests as such, in that we thought
that all believers were of equal value and could do all of those
things. I would not accept something contrary to
that. Ms
Diane Abbott (Hackney, North and Stoke Newington) (Lab): I
take the opportunity of my Whip’s being absent from the
Committee to intervene. The hon. Gentleman said that offering to pray
was not the same as an imposition, but surely a person who is ill in
bed and feeling vulnerable and unwell is not in a position to debate
whether they want to be prayed over. It is one thing for a patient to
ask for a nurse to pray over them. Personally, I would not want to be
prayed over, willy-nilly, if I was lying ill and frail in
bed.
John
Mason: I take the hon. Lady’s point. A large part
of nursing is about sensitivity and getting to know the patient, among
other things. I agree that there could be a time when such behaviour
was clearly insensitive, but I suggest that at other times it could be
perfectly sensitive and
helpful. I
have just realised that I did not answer a question asked by the hon.
Member for Oxford, West and Abingdon. Yes, I do believe that prayer
makes a difference, whether the person is or is not there to be prayed
for. Mrs.
Petrie was not alone in finding that expressing her religion could be
hazardous for her livelihood. In March this year, David Booker, a
Christian charity worker in Southampton, was suspended under diversity
rules after a conversation in which he answered a colleague’s
questions about his religious beliefs on sexual ethics.
Mr. Booker had worked as a hostel support worker
for four years. His bosses told him that expressing his religious
beliefs on same-sex unions broke the charity’s culture and
diversity code of
conduct. As
I have said, the hon. Gentleman is not a great fan of religion, but he
was generous enough to say on Second Reading that he defended
Mr. Booker’s rights to express, in
moderate terms, his religious beliefs about sexual
ethics.
Dr.
Harris: I should explain that, having researched
Mr. Booker’s case as far as I can, on the
facts as I know them, and no Committee member knows the full facts of
either of those cases, which are likely to be fact-specific, the
suggestion is that his conduct broke the code of practice—I do
not think that the case has been decided yet—designed to prevent
people from being harassed. That is really a question of whether the
definition of harassment in work, as reflected in an employee’s
code of conduct—if it was indeed reflected in such a
code—is too broad. Before people dive for suspensions, there
ought to be a little more scope to discuss with a colleague, in
moderate terms, their religious views on a lonely
nightshift. I
hope that the hon. Gentleman will concede that that is entirely
different from a health care professional dealing with a vulnerable
patient who has not asked any questions at all, and is suddenly asked
whether they are gay, for example. What does he think about a Christian
saying to someone who is gay, “I’ll pray for your
soul,” knowing that position? That is a different matter. I hope
that he recognises
that.
John
Mason: I accept that the two cases are different. However,
in both cases, whether it is an employee or a patient—or anybody
else—one wants there to be sensitivity. One of the ideas of
Christianity is that one is loving and sensitive, and so on. I have
been in situations where one just would not talk about religion or sex,
or anything, with some fellow employees, because it would be a
disaster, whereas it would be possible to chat with other people in the
pub or during a tea break, for
example. I
understand that the “Pink News” website spoke out in
Mr. Booker’s defence. It ran a piece that
concluded: “Whatever
the outcome of this case, it seems increasingly apparent that people
have more of a right to be gay than to be
religious.” We
can argue about the details of the law—where it has been and
where it is—but there is a feeling in society that religion is
the poor relation in some
cases. My
amendment does not seek to stop employers placing limits on speech. It
asks the employers to be even-handed. No employer wants inflammatory
speech in the workplace. I am perfectly comfortable with that as long
as employers are consistent. If they want to ban all divisive
conversation in the workplace, they should apply that ban without fear
or favour, whether the subject is music, politics or football
rivalries. A
ban on divisive or offensive speech would not fall foul of the
amendment, as long as it was applied consistently to religious and
non-religious speech alike. The amendment is not limited to employment,
but would apply to a definition of direct discrimination on religion or
belief grounds for the whole Bill. It would, therefore, apply to the
actions of all those who were bound by the Bill, such as local
authorities and the police.
As an aside, I
hope that the amendment sends a signal to those local authorities that
think that religious equality means banning Christmas and such like.
They would have to ensure that they were not applying one rule for
expressions of secularism and another for expressions of religion. I
accept that it is already arguable that imposing unfair restrictions on
religious speech constitutes direct religious discrimination, but with
all such cases, if we want to tackle real, live injustices, it seems
that we have to make the obvious more obvious. I could have cited other
cases. I
hope that the Minister accepts that there is evidence of a problem that
needs addressing. As I said, there is a feeling that religion is the
poor relation in equality law—the equality strand that dares not
speak its name. We should not have to state something so obvious in the
definition of indirect discrimination in clause 13, but with cases of
religious people coming off second best when acting fairly reasonably,
it seems that we have to do something to correct the imbalance that has
come about in the interpretation and application of equality
law. New
clause 3 underlines what has already been said. It is based on the
guidelines issued by Bill Clinton in 1997 on freedom of religious
expression in the federal work place—that is something
practical, which has been used elsewhere. As I said, I do not want
religion to trump other protected characteristics, I just want us to
have mutual
respect. Finally,
amendment 221 would amend the definition of direct discrimination in
clause 13. An explanatory note cites the case of Lillian Ladele, who
was a Christian marriage registrar. As I understand it, in July last
year, at first instance, the employment tribunal found in Miss
Ladele’s favour. Its ruling listed various acts of direct
discrimination committed against Miss Ladele by Islington council on
the grounds of her religious belief: failing to consider her for
promotion; deciding to discipline her and threatening her with
dismissal; concluding that she had committed gross misconduct; failing
to redress allegations that she was homophobic, and labelling and
treating her as homophobic; disregarding her concerns about her
treatment; and failing to apply its anti-discrimination policies to gay
colleagues who were mistreating her. The employment tribunal also found
that the
council “disregarded
and displayed no respect for Ms Ladele’s genuinely held
religious
belief” and
that it created
an “intimidating,
hostile, degrading, humiliating or offensive environment for her on
grounds of her religion or
belief.” However,
in December last year, the Employment Appeal Tribunal overturned that
ruling. It accepted that Islington had acted in an improper,
unreasonable and extraordinary
manner: “There
were clearly some unsatisfactory features about the way the council
handled this matter. The claimant’s beliefs were strong and
genuine and not all of management treated them with the sensitivity
which they might have
done.” However,
the tribunal ruled that it did not amount to religious discrimination.
It seems extraordinary for the Employment Appeal Tribunal to say that
the young lady was badly treated in connection with her sincere
religious beliefs, but that she should have no redress
whatsoever.
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