Mr.
Harper: The hon. Gentleman lays out a good case for a
number of his amendments. As he mentioned, we tabled amendment 149,
which would leave out the words wholly or from the
measure. We chose it predominantly as a probing amendment to enable us
to have this discussion, although he has tabled more substantive
amendments. We have had discussions on this topic before, as Committee
members will remember, and I want to test the Minister on two issues:
what the Governments intentions are, and whether the Bill
implements them correctly. I then want to discuss whether the Bill
deals with the issue adequately, although I shall do so only briefly
because the hon. Gentleman addressed that satisfactorily.
Several hon.
Members and I have held a number of discussions with some of the Church
organisations and two issues have arisen. The hon. Gentleman has
already alluded to the first, which is the narrowing of the definition
of an organised religion under paragraph 2(8)(a) and (b). At
the moment, the Governments position in the Employment Equality
(Sexual Orientation) Regulations 2003 does not attempt to define it at
such a level. The then Minister of State, Lord Sainsbury of Turville,
said in response to the debate on the 2003 regulations in the House of
Lords: When
drafting Regulation 7(3), we had in mind a very narrow range of
employment: ministers of religion, plus a small number of posts outside
the clergy, including those who exist to promote and represent
religion.[Official Report, House of
Lords, 17 June 2003; Vol. 649, c. 779.]
When we had such a
discussion previously, there was no disagreement about those who are in
a post of clergy where they are taking religious services. The issue
was the width of the scope of paragraph 2(8)(b), which
concerns promoting
or explaining the doctrine of the religion...to
others.
We have had some
discussion around whether it would cover those who, for example, were
involved in promoting a religious organisation to the outside world and
representing its case, for whom it would be significant that their
public utterances about the things that were important to that religion
or Church, and their behaviour, would be in line with the views of the
Church. It clearly would not be convincing if they said one thing
and did another.
Many Church
groups think that the wording of the provision represents a narrowing
that will rule out a number of the posts that are currently allowed
under the 2003 regulations, which the Bill is effectively supposed to
be carrying across. It would be helpful if the Minister could tell us
about the translation of those regulations into the Bill, and say what
was intended, so that we can see whether that has been the effect. Will
she also set out what posts the Government think should be
covered?
One of the
things that has confused the situation is the explanatory notes, which
talk specifically about a church youth worker. We have
discussed whether the nature of the role of a church youth worker could
be determined as
promoting or
explaining the doctrine of the religion...to
others as
under paragraph 2(8)(b). We have also considered whether that type of
post should be included, and we will welcome the Ministers
comments about that.
The second
area, which the hon. Member for Glasgow, East touched on, is the
proportionality test. A number of Churches and religious organisations
think that that represents a further narrowing. It concerns the
condition in sub-paragraphs (5) and (6) that when the
compliance principle or the non-conflict
principle are engaged, both must be applied only if doing so is
a proportionate means of complying with the doctrine of the religion.
That proportionality test is not present in the 2003 regulations. The
Churches are concerned not because they want to act disproportionately,
but because putting that in means that courts and tribunals will have
to be involved in addressing questions about the nature and extent of
particular religious doctrines and the way in which they
work.
I raise that
because when regulation 7(3) of the 2003 regulations was drafted, it
seemed that the Governments policy was deliberately not to
impose a proportionality test. In the case of R (Amicus)
v. Secretary of State for Trade and Industry in 2004,
the witness statement filed on behalf of the Secretary of State
explained: Regulation
7(2) simply sets out criteria of general application and leaves it to
the courts and tribunals to determine in individual cases if those
criteria are met. This was not done in relation to employment for
purposes of an organised religion in regulation 7(3), because the
Government was concerned it would lead to litigation in tribunals about
the extent to which requirements dictated by doctrine or the religious
convictions of followers could legitimately limit working for an
organised religion, and to what extent those requirements, and by
extension, the doctrine or convictions giving rise to them, could be
said to be reasonable or proportionate. The Government was engaged in
striking a delicate balance
the Committee
acknowledges that it is a
balance between
the employment rights of gay and lesbian people, and the right of
religious groups to freedom of religion. The Government took the view
that it is not appropriate for courts or tribunals to make such
judgments, and that the balance should be identified in the Regulations
themselves. 5.45
pm It
would be helpful if the Minister commented on the judgment at that
time, why the Government in effect have introduced the proportionality
test and whether they recognise that it carries that riskthat
it opens up to courts and tribunals the test of having to make
judgments about individual religions. The hon. Member for Glasgow, East
made a very good point when he said that those judgments are best left
to the religions themselves, rather than being taken outside the
religion and given to the industrial tribunal or the
court. Those
are the two issues on which I wanted to probe the Minister and invite
her to set them out clearly for the Committee, so that we can see
whether the Bill does what the Governments stated intentions
are.
Dr.
Harris: I have an amendment in this group, which I shall
speak to briefly. I shall also comment briefly on the issues that have
just been raised. I set out my views under an earlier clause. I thought
that it was appropriate to do that because it is such a critical issue
and I did not think that it was best dealt with by being hooked on to a
probing amendment on wholly or mainly in the schedule.
However, the hon. Member for Forest of Dean has brought the issues
forward quite
well. My
amendment 250 is a probing amendment to enable me to ask a specific
question. Why does the Minister not consider it appropriate to provide
a different test before religious organisations with a religious ethos
are allowed to discriminate against their employees based on religion
or belief when they are delivering a public service, compared with all
other circumstances? I recognise and my party recognises that it is
necessary to have the sort of exemption that we see in paragraph 3 of
schedule 9 for religious organisations, but the balance is wrong when
we come to the delivery of a public service, because there may be
individuals delivering a public service and then the tender, the
contract, for the service that they are providing is handed over to an
organisation with a religious ethos. What protection do people who have
never applied to work for that organisation, but find themselves taken
over, as it were, by it, have against a religion test being applied to
them when they are, yes, working for an organisation with a religious
ethos, but doing a job that could equally well be done by a secular
organisation, such as providing accommodation, care, homelessness
provision or a number of other public services? They might even be
doing the very important and obvious public function of arranging
adoptions for children. I do not think that there can be more of a
public function than that. If they were taken over, the concern would
be, no matter how good they were at their job, that an occupational
requirement would be made
out. I
am asking whether the test needs to be higher when we are talking about
public services. Otherwise, if more faith-based organisations deliver
public servicesit would be discriminatory to prevent them from
delivering public
servicesindividuals seeking to work in that field might have a
far smaller range of choices as to what jobs they can do and what
employers they can work for if they are not religious or are of a
minority religion or are not of the religion of the organisation
delivering the public service. I hope that the Minister recognises that
I accept the need for an exemption, but that there is a question in
respect of the delivery of public services. I should be grateful if she
would comment on that.
I turn to the
issues raised by amendment 44, moved by the hon. Member for Glasgow,
East. I shall leave the Minister to deal with the question of why
proportionate was included. I argued previously that
the directive requires tribunals and courts to have regard to
proportionality when interpreting our legislation. I have said
previously that the closer our legislation gets to the wording of the
directive, the less room for doubt there will be.
Other than
the caveat that I raised on paragraph 3, I pretty much support the
wording of the schedule, which is why I did not table any significant
amendments. They would have been needed if we were to have had the sort
of debate that we had earlier. I hope that the Government will be
robust not only on the reason for including
proportionate but also on the question of why we need
paragraph 2(8). As we said earlier, it exists to implement the Amicus
judgment, which in turn makes it clear that our legislation is
compliant with the directive. The Minister reassured me on that
earlier; I hope that she will now reassure the hon. Member for Forest
of Dean. Whether or not it is a narrowing of the terms of our
legislation, it is not a narrowing of the law, because the law is what
is allowed by the directive, as interpreted by the court case. The
Amicus judgment was clear and welcome in that
respect. The
hon. Member for Glasgow, East referred to the Reaney case. I ask the
Minister to correct me if I am wrong, but I believe that it did not set
a precedent as it was a first instance tribunal. What I say is based on
what I have heard, but I believe that neither side was particularly
happy with the judgment. Although the claimant won, I happen to think
that it was unsatisfactory that the job described was one for which a
wider exemption might have applied. Mr. Reaney won on the
basis that he said that he was celibate at the time, or not practising,
and that it was unfair, unreasonable and discriminatory to require him
to give a commitment that would not have been asked of a heterosexual.
However, I do not believe that it was a good judgment; I wish that it
had been appealedand successfully sobut both sides
decided to cut their
losses. The
example given in the explanatory notes refers to a church youth worker.
Reaney was a diocesan youth worker, but the tribunal felt that there
was more of a representative role in that case. It is worth reading the
Reaney judgment. Given the job description and the CV of the person
concerned, it was clear that he was a good youth worker. He happened
also to be a Christian, but he was a good youth worker and the
appointment committee said that he was streets ahead of all the other
applicantseven knowing his sexual orientation and the fact that
he had had a homosexual relationship in a previous job.
For positions
like that, it does not seem right that the wider exemption should
apply. Youth workers working for religious organisations throughout the
country should
not have to quake in their shoes and worry that they are liable to be
sacked if their sexual orientation comes to light should they meet
someone, fall in love and want to have the same relationship with that
person as heterosexuals would haveeven though they are
homosexual, and even though they are doing a good
job.
John
Mason: The hon. Gentleman said that the youth worker
happened also to be a Christian. A lot may hinge on
that. For someone with a humanist or secular background, being a
Christian is peripheral and only a small part of life. The problem is
that for religious organisations, including churches, being a
Christianor a being Muslim or a member of any other
religionis absolutely central. It is not something that happens
to be added on; it is central.
Dr.
Harris: I apologise if I said happen to
be; I did not think that I had. I accept that the requirement
for that post was that the person should be a Christian. Clearly, such
a religious requirement would apply under paragraph (3). There is no
doubt that it is an organisation with an ethos, and one could argue
that it is an occupational requirement. I have no problem about that
advertisement saying Christians only. I hope that I
have clarified that, and I am not seeking to make the point that it was
not a genuine requirement, and therefore central. I am saying that it
is possible to be Christian and gay. To discriminate against
someonewe have heard this beforeon the basis of their
sexual orientation by saying that they are somehow outwith the
doctrines of the religion and therefore fail a religious test is not
satisfactory. The Minister assured me, although this gives me a chance
to clarify the matter further, in answer to the point when I tabled a
probing amendment, that there was some provision in the Bill that made
it clearit may be that it is just obviousthat if
someone was discriminated against on the grounds of their sexual
orientation or a manifestation of that where it is so closely connected
that it is their sexual orientation, by definition, it could not be a
religious criteria; it would be sexual orientation discrimination. If
she could repeat thatshe said it was something to do with
schedule 23, but I cannot find itI would be grateful. That is
all I am going to say about the point made by the hon. Member for
Glasgow, East, because we have thrashed out that argument on a number
of occasions.
The only
other point to make in respect of paragraph 2(8) is what
will happen to church organists. It is the save-the-organist point that
I want to make. It was raised earlier by people who have an interest in
it. Curiously, it looks likeas they put it, for I do not think
it is curious at allyouth workers will not be caught by the
exemption. I am pleased that they will not, if that is the case
generally speaking, unless the advertisement is written much more
clearly in terms of promoting the doctrine of the religion than most
youth worker jobs are. The issue is also whether it would actually
catch the organist, because their
work wholly
or mainly
involves (a)
leading or assisting in the observation of...ritualistic practices
of the
religion. It
would be unfortunate if the wording was designed to capture people
where the main part of their job was to play a musical instrument well,
albeit with religious music.
Mr.
Harper: What the hon. Gentleman is saying perhaps
illustrates the point that I was trying to make. Trying to be too
specific on the face of the Bill about the nature of the roles leads to
such situations, where one would include the church organists, where
actually, I would argue, what they do is not very important. We would
then not capture someone who was involved, such as a youth worker with
a significant amount of teaching. It would be better if the specific
nature of the test was not there. In the definition, we would just
leave organised religion in there, and it would be determined by the
court or tribunal if it was an occupational
requirement.
Dr.
Harris: I disagree with the hon. Gentleman. The more
specific it is, the less doubt there is. That is why I welcome the fact
that it has been made more specific. The point that I am making is that
even when it has been made more specificnot necessarily more
narrowin our legislation, it is not clear whether that
definition captures people who I do not think ought to be
caught. I
do not want the hon. Member for Forest of Dean to think for one moment
that I accept that if one is teaching and is in a religious
organisation, there is some sexual orientation test that is automatic.
I understand that if one is proselytising, that can be a question. But
promoting or explaining the doctrine is what matters, not the general
teaching point of view. That implies that any role that involves young
people, which automatically involves teaching, would be caught. I hope
that that is not the intention of the schedule. It must not be its
intention, because otherwise we would just have a no gay teachers
situation, which, with the connotations, is unacceptable. I accept that
the hon. Gentleman does not need to make them, but they are sometimes
made in that respect. I urge all of us to be careful where we assume
that teaching, rather than explaining or promoting the doctrine of a
religion, is automatically
caught. There
are just two other points that I would like to raise to avoid a stand
part debate. That is to ask the Minister briefly why, in paragraph (1),
in line 15, the language does not use the term genuine
occupational requirement, but only occupational
requirement. It would be sensible to use the language of the
directive, because it is
there. 6
pm On
the same page, sub-paragraph (4), line 37, raises a couple of further
issues. Why does the question of whether
A has
reasonable grounds for not being satisfied that the person
meets a
requirement apply only to
the requirement
to be of a particular
sex? The
Bill statesrightlythat there are no ifs or buts. A
person cannot say, Well, he kind of looks male, so well
assume that she is not female and that therefore the provision does not
apply. Should that not also apply to age? A person has a
specific age that should not be open to doubt.
Finally, on
the same issueto a certain extentit is most unfortunate
that sub-paragraph (3)(a), on page 180, in respect of a
transsexual person, does not give any protection to someone with a
gender recognition certificate. There is a starred but not select
amendment on this
matter, so the Minister might have had some notice
of it. It is very worrying that a person can have a gender recognition
certificate stating very clearly their new gender and still be liable
to be considered a transsexual on a spectrum without the protection
that I thought that the Government would seek to provide. With those
caveats and questions, however, I support the Governments
general approach, and I urge them to resist the lead
amendment. Mr.
David Drew (Stroud) (Lab/Co-op): I do not know whether I
have said this already, but it is a delight to serve under your
chairmanship, Lady Winterton. I rise with some trepidation, given the
length of time that we have spent on this debate already. Let me say
first, however, that given the shortage of organists in my church, I
imagine that it would let anyone play its music, regardless of their
religious beliefs. So if anyone would like to apply to my church, we
would be only too grateful to receive
them. I
want to make two quick observations. First, I do not think that
exceptions make good rules here. Although I largely agree with the hon.
Member for Glasgow, East, a couple of his examples demonstrate the
difficulty in this area. It just so happens that one of the founding
fathers of Greenpeace is now an avowed supporter of nuclear
powerone Patrick Moore. That shows how peoples beliefs
can change over time. When laying down general rules on organisations,
therefore, we must consider that peoples views are not static.
People do change their
views. I
realise that we are talking principally about religion, but different
examples can demonstrate the difficulties that arise over time. I shall
give a personal example. A very good friend of mine was the most
wonderful religious education teacher who just happened to be a
long-standing agnostic. That was well known and accepted. In those
daysI am going back rather a long timeRE teachers were
supposed to be of the Christian faith. However, he taught it from his
perspective and was able to hold his views somewhat in the background
while teaching clearly and carefully what was deemed to be a very
acceptable curriculum. That can be done, although it is very
difficult
|