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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 Government’s 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 Government’s 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 Minister’s 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 Government’s 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.”
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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 risk—that 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 Government’s 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 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 appealed—and successfully so—but 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 applicants—even knowing his sexual orientation and the fact that he had had a homosexual relationship in a previous 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 Christian—or a being Muslim or a member of any other religion—is 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 someone—we have heard this before—on 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 clear—it may be that it is just obvious—that 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 that—she said it was something to do with schedule 23, but I cannot find it—I 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 like—as they put it, for I do not think it is curious at all—youth 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 specific—not necessarily more narrow—in 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.
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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 states—rightly—that there are no ifs or buts. A person cannot say, “Well, he kind of looks male, so we’ll 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.
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 power—one Patrick Moore. That shows how people’s beliefs can change over time. When laying down general rules on organisations, therefore, we must consider that people’s 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 days—I am going back rather a long time—RE 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—
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