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Lynne Featherstone: The amendment is probing to establish to what extent volunteers have the same protection from discrimination as employees, and I hope that they have the same protections. Obviously, the discrimination could not be between paid and non-paid workers, but volunteers often have expenses, such as those for travel and lunch. I am sure that there should be no discrimination between someone with a disability, an ethnic minority person or a woman getting differential expenses, but I would like that matter clarified, because it is unclear to me whether volunteers will be protected from discrimination. I am not sure whether the service or the type of employment will be protected by part 3 when providing goods and services, but it is clear that those who offer their services for free should not be discriminated against, and I would be grateful if the Government clarified that.
Mr. Harper: I rise to speak to amendment 243 and new clause 19, which was tabled by my hon. Friend the Member for Daventry, who, owing to his service on the Council of Europe, is unable to be in Committee today.
As the hon. Member for Hornsey and Wood Green said, the amendment probes, as does the new clause, the extent to which volunteers will be covered. If organisations rely heavily on volunteers and if all the rules in the work section apply to volunteers, we want to ensure that, given the nature of volunteering—the length of the relationship and what is invested in it—we do not make organisations less likely to want to use volunteers. In particular, as we discussed in the previous debate, the route back to work for some disabled people will involve going straight from benefits to working in a full-time job, but the route for others will perhaps involve taking up a volunteering opportunity, then a part-time opportunity and then full-time work. For many people, that is a successful route back into work.
The amendment and new clause test what applies to employers. Not only do we want employers not to discriminate, but we want them to use the disability provisions. We want them to be able to favour disabled people not just as employees but as volunteers, to provide opportunities that will help not just the disabled people but our overall goal of getting more of them back into work.
The amendment and new clause are designed to check the extent to which this part of the Bill applies to those who are volunteering their services to organisations. Will it apply to volunteering in general, or will it capture other types of volunteering, such as volunteering that is akin to working, albeit without pay?
The Solicitor-General: The amendment and the new clause are about whether we extend the protection from discrimination, victimisation and harassment to volunteers. We recognise the contribution of volunteering and believe that volunteers should be treated with respect and care, but we do not legislate for volunteers in exactly the same way as employees in the Bill.
First, there is no clear evidence of systematic discrimination. The majority of volunteers appear to be well managed. We have looked at the legal rights of volunteers on a number of occasions—most recently exploring them in 2004, when a private Member’s Bill was promoted by the hon. Member for Canterbury (Mr. Brazier). Research from 2007 shows no suggestion of such discrimination, although there may be some dissatisfaction in how voluntary placements are organised.
Secondly, there is some protection. Volunteers are currently protected from discrimination, victimisation and harassment in respect of the provision of goods, facilities and services to the public. As recipients of services—for instance, from an agency that arranges placements—there would be protection, which has been extended to cover age. Such discrimination might be highly relevant. Changing the laws proposed would provide a remedy in an employment tribunal instead of a county court, but there is a remedy already. Where the relationship between a charity or organisation and an individual amounts to employment, there is protection under the employment provisions.
A practical difficulty in extending discrimination legislation across the board is that volunteering can vary from regular daily routines in the shop to driving someone to hospital from time to time. There is a wide range of volunteering. In some cases, the organisation for which the volunteer works may do little more than put a volunteer in touch with someone who they may be able to help and then simply check up to see that all is going well. There would be difficulties in drawing the line, and there could be a chilling effect on the number of volunteers if legislative burdens were imposed on such a diverse sector. However, no one would wish that volunteers, who offer their time for free, should be treated unfairly, and the Government are committed to ensuring that that does not happen by continuing to monitor the situation and to provide support and guidance.
Lynne Featherstone: I thank the Minister for her explanation, which lays out the parameters exactly. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 78 ordered to stand part of the Bill.
Schedule 8 agreed to.

Schedule 9

Work: exceptions
John Mason: I beg to move amendment 44, in schedule 9, page 181, line 33, leave out ‘proportionate’.
The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendment to leave out sub-paragraph (8), retains the status quo.
The Chairman: With this it will be convenient to discuss the following: amendment 45, in schedule 9, page 181, line 37, leave out ‘proportionate’.
The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the Amendment to leave out sub-paragraph (8), retains the status quo.
Amendment 42, in schedule 9, page 181, line 41, leave out sub-paragraph (8) and insert—
‘(8) Employment is for the purposes of an organised religion if—
(a) A has an ethos based on religion or belief, or
(b) the employment wholly or mainly involves—
(i) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
(ii) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).’.
Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment would instead broaden the scope of the exceptions to benefit all religious organisations.
Amendment 43, in schedule 9, page 181, line 41, leave out sub-paragraph (8).
Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendments to lines 33 and 37, retains the status quo.
Amendment 189, in schedule 9, page 181, line 42, leave out ‘wholly or’.
Amendment 46, in schedule 9, page 182, line 6, leave out from ‘requirement’ to ‘if’ and insert ‘to which sub-paragraph (2) applies’.
Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.
Amendment 47, in schedule 9, page 182, line 13, at end insert—
‘(2) This paragraph applies to—
(a) a requirement to be of a particular religion or belief;
(b) a requirement to be of a particular sex;
(c) a requirement not to be a transsexual person;
(d) a requirement not be married or a civil partner;
(e) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
(f) a requirement relating to circumstances in which a marriage or civil partnership came to an end;
(g) a requirement related to sexual orientation.’.
Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.
Amendment 250, in schedule 9, page 182, line 14, at end insert—
‘4 Paragraph 3 does not apply when A is operating—
(a) on behalf of a public authority, and
(b) under the terms of contract between the organisation and the public authority.’.
An amendment to ensure that users of public service provided by an organisation with a religious ethos are not subject to conditions or requirements of that ethos.
It might be helpful to the Committee at the outset to indicate that many of the issues have been discussed already and that discussions will continue on the other groups of amendments. Therefore, hon. Members could perhaps use some discretion, and we might not have a debate on schedule 9 at the end if everyone is content.
John Mason: I take it that that was an indication that we should not spend too long on the schedule and that I might not have as many interventions as I was anticipating.
Amendments 44 and 45 would take out the new test of proportionality that has been added to the sexual conduct exceptions for religious bodies. The test does not appear in paragraph 7(3) of the Employment Equality (Religion or Belief) Regulations 2003, which contains the previous incarnation of the exception. I might as well just throw in at this point that I do not speak on behalf of my party on this issue.
5.30 pm
There is no reason for the Government to depart from the wording that was agreed with religious groups in 2003, which has been on the statute book for six years. Has there been a single employment tribunal case in which a Church has successfully relied on the exemptions given in 2003? Did any such cases involve discrimination that the Government believe to be disproportionate and worthy of being outlawed? I would be grateful if the Minister could answer those questions.
I have some notes from the Church of England, which gave evidence to us. It is probably not the most radical of the religious groups that we meet day to day. One paragraph of its notes states:
“It seems to us that this risks involving the courts and tribunals in having to address questions as to the precise nature and extent of particular religious doctrines, or as to precisely how strongly particular religious convictions were held. It would also mean that having done that, the courts would have to go on to determine what the effect of those doctrines or strongly held beliefs was in terms of the details of the requirements that needed to be applied in order to comply with them. This is exactly the territory into which the courts are both reluctant and ill-equipped to venture.”
Amendment 43 would remove the new definition of organised religion in paragraph 2(8) of schedule 9. The new definition, which, again, was not present in the wording agreed with the Churches in 2003, states:
“Employment 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).”
As the Minister said last Tuesday, any lawyer knows that as soon as we list anything, we narrow it. By listing what is regarded as organised religion, the Government are narrowing the exemption.
The Solicitor-General: That is not what I said at all. I said that by putting a list in, we could, by implication, leave out things that people might have thought to be covered by the legislation. That is not necessarily narrowing the legislation. I hope that that is clear; if it is not, I will say it again in a different way. I made no such assertion.
John Mason: I can respond by basically agreeing with the Minister. However, the fear is that the measure leaves out—we might not want to say that this is “narrowing”—things that might otherwise be expected to be included. That is my point, and I think it is valid.
In Reaney v. the Diocese of Hereford, Stonewall financed a legal action by a homosexual man against the Church of England over his application to become a diocesan youth worker. The judgment seemed peculiar and fudged the issues. Mr. Reaney won on the particular facts of the case, but the employment tribunal rejected the argument that the exemption applied only to Church ministers, and ruled that Churches could also require a youth worker to adhere to their doctrines on marriage and celibacy. However, explanatory note 747 on page E182 insists that the new wording in paragraph 2 excludes youth workers. In that case, the new wording is intended to narrow the exception.
The Government—intentionally or unintentionally—have got religious groups very worried indeed. Both the Church of England and the Roman Catholic Church gave evidence saying that they believed that the Bill weakened protections that were designed to protect their fundamental human right to manifest their religion.
Let me make some comparisons that might help the Committee to understand better where the Churches are coming from. If a Greenpeace employee was found to be participating in the arms trade, surely he or she would be asked to leave, because anything else would deny a basic tenet of the organisation and expose it to ridicule. If the world knew that Greenpeace employed such a person, people would cease to support it. Similarly, if a political party researcher began campaigning for another party, surely that person would not keep their job. To allow someone so at odds with the party to remain in a position of influence would be a breach of the original party’s freedom of association.
There is something fundamental about working for an organisation with a strong ethos. This could apply to any of the protected characteristics, whether it is age, disability, LGBT status or anything else. There is an expectation that all staff should be signed up to and enthusiastic about an organisation’s direction. That affects the mood when staff come to work in the morning, how they chat in the staff room and so on. I am an accountant, but I have worked for nursing homes and housing associations. One would expect everyone in a nursing home, including the accountant, to be signed up to nursing and the welfare of the residents. Similarly, in housing, one expects everyone to be signed up to quality housing and the good of the tenants. In the same way, the Churches should not have to employ people who, through their lifestyle, repudiate important beliefs that the organisation exists to promote.
Amendments 42, 46 and 47 would widen the scope of the religious exemptions. In the Reaney case that I mentioned, the Diocese of Hereford was ordered to pay £47,000 for refusing to appoint to a diocesan youth worker position a man who had only recently ended a homosexual relationship and who said that he might enter into another such relationship in future. Everyone can see the difficulty in which that places the Church. The case shows that the existing exceptions are not sufficiently robust. My amendments demonstrate different ways of wording the exemptions to provide better protection for religious freedom of association.
Amendments 46 and 47 take the list of activities exempted by paragraph 2 of schedule 9 and place them within the framework of paragraph 3. Again, paragraph 3 protects a broader range of posts. That is by far the neatest and most effective way of providing protection to religious bodies that want to maintain their beliefs in their employment policies. Some will say that both my approaches are too wide and would benefit organisations and jobs that they do not think should be covered, but we must be careful about telling religious organisations which posts are important to their religion and which are not. If they can pass the religious ethos test, we must leave it up to them.
I note that the Conservatives have tabled amendment 189, which would make the definition of organised religion marginally wider by tinkering with the “wholly or mainly” test. Their amendment highlights the arbitrary nature of the organised religion test. A youth worker who spends 49 per cent. of his time teaching doctrine is none the less not in a protected post, but if he spends 51 per cent. of his time teaching, he is, so a Church may be told by the state to employ as a teacher of their religion someone who rejects its teachings all for the sake of 2 per cent. of the worker’s time. The arrangement seems too arbitrary and uncertain.
There are too many hoops in the exceptions for Churches to jump through, even though they are designed to protect Churches’ fundamental human rights. I hope that the Government will think again about some of the issues.
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