John
Mason: I appreciate what the hon. Gentleman is saying; he
is making a balanced point. However, does he agree that there is a
slight difference between an RE teacher in a school, who
shouldI agree with himgive a balanced view of all
religions, and somebody within a Church or a religious organisation,
who would be promoting the ethos of that
organisation?
Mr.
Drew: I would agree. I come to my second point. I am
alarmed by the intolerance. I find it difficult to understand how
someone who has a fundamental disagreement with the organisation from
which they are seeking employment or membership does so from a position
of almost trying to be a protagonist. In this day and age, people
should be much more tolerant, and they should not try to undermine
basic belief structures, whether religious or otherwise. Unfortunately,
people seem to want to do
so. A
lot of thisit may not be under the purview of the
Billgoes back to the fear, which is in some ways justified,
that religious organisations with a clear view on adoption have, with
the passage of time, been driven
out of adoption, if not quite entirely. They have
had to almost de-religionise their perspectivesorry about my
terrible use of the English language. They have moved out of adoption,
which is sad, because they had a role to play. They had a clear
perspective on delivery, and I do not understand why they have had to
move out when others have been able to remain. There should be a degree
of choice. There should also be tolerance of the way in which
belief-based organisations deliver in the public sphere. We should not
shut out everyone with such beliefs.
I will be
interested to hear what my hon. and learned Friend the Minister has to
say on making the situation clearer. I hope that we can encompass all
beliefs within the normal sphere of opinion rather than narrowing
things to such an extent that we eliminate those who have a view that
is not entirely in line with everybodys opinion, which I fear
will happen. Those beliefs may still have a purpose. As a Christian, I
believe that such organisations have a strong underlying ability to
work well in areas such as adoption. They could also work well when it
comes to employing Church workers, includingdare I
saythe odd organist.
The
Solicitor-General: I will come back to the odd organist in
a minute if I
may. Mr.
Drew: If the Minister wants to volunteer, she would be very
welcome.
The
Solicitor-General: My hon. Friend would be in dire straits
if I played the organ in his
church. Let
me answer the three quick questions levelled at me by the hon. Member
for Oxford, West and Abingdon. He asked why the word
genuine is not in the measure. We had that discussion
this morning: the word would not add anything and it will be a matter
of fact to determine whether something is
genuine.
The hon.
Gentleman asked why paragraph 1(4) of schedule 9 refers to age as well
as sex. Paragraph 1(1)(c) provides that the general occupation
requirement exception applies either when the employee or job applicant
does not meet the requirement or when the employer
has reasonable
grounds for not being satisfied
that they
do. Paragraph 1(4) provides that in the case of a requirement to be of
a particular sex, the exception applies only when the employer or job
applicant does not meet the requirement. We do not believe that it
would be difficult to establish whether the employee or applicant is a
man or a woman.
Incidentally,
the hon. Gentleman was concerned about people who have gender
recognition certificates. A transsexual person with a certificate is
going to be treated, as they must be for all purposes, as being of the
acquired gender. That is provided for by section 9(1) of the Gender
Recognition Act 2004.
Coming back
to the schedule and the question of the requirement to be of a
particular age group, there might be some argument about the age of the
employee or applicant. If he or she refuses to disclose his or her age,
it is unlikely that the employer could prove that they do not meet the
requirement, because the age would usually be in the employees
exclusive knowledge. In that case, the employer may be able to show
reasonable grounds for not being satisfied that the employee or
applicant meets the requirement. I hope that that is good
enough.
Amendments
44 and 45 would remove the express requirement for those relying on
paragraph 2 of schedule 9 to show that applying a relevant
occupational requirement is a proportionate way of complying with a
religious doctrine or of avoiding conflict with a strongly held
religious conviction. It is true that the existing exceptions do not
contain an express requirement of proportionality. It is also true that
the hon. Member for Oxford, West and Abingdon has put his finger on the
point that courts must interpret them as though they did, because that
test is put in by the relevant European directive, so we decided to
spell out the requirement in paragraph 2. It is implicit anyway; we are
not narrowing it. Not doing that would also put paragraph 2 out of
step, because we have harmonised the wording of all other exceptions
for occupational
requirements. I
accept that a restriction on employment by reference to the doctrines
of a religion or strongly held convictions can pursue a legitimate aim.
The existing exceptions spell out the express provisos in the relevant
European directives that the discriminatory requirement must meet a
legitimate objective, but it must be proportionate. Proportionality is
obviously fact-sensitive; it must be assessed on a case-by-case basis,
which seems entirely reasonable to us.
I rather
differ from the hon. Member for Oxford, West and Abingdon, and I think
that I derive some support from my hon. Friend the Member for Stroud in
pointing out the difficulties with being very specific and thinking
that it is better for issues to be a question of fact. Would a youth
worker be covered by an occupational requirement? Similarly, would an
organist? It would be a question of the facts in the particular case,
would it not? One can imagine that a republican organist might be able
to play God Save the Queen and so not need the
commitment.
In each case,
it would be a question of fact. It is better not to be specific,
because it is a delicate area, and it is easy to fall down on the wrong
side of what most people would think reasonable. Many of the cases will
be fact-sensitive. I regret slightly the intrusion of the youth worker
into the explanatory notes. It is too wholesale a provision. We might
consider whether it needs replacing.
Dr.
Harris: For what the explanatory notes are worth, I hope
that the Minister keeps the youth worker in. I urge her not to remove
it. She used the example of a republican playing God Save the
Queen, but that would amount by analogy to a religious test.
That is fineI do not think that there is a problem with
requiring a church organist to be a member of the congregation and
therefore of the right religionbut we are talking about sexual
orientation and other protected characteristics. I therefore hope that
she does not rely on her analogy as the appropriate one. There is a
concern that organists and other people involved only in ritual, not
promotion, might unfortunately be caught by the
provisions.
The
Solicitor-General: One would hope not. As I said, they are
intended to operate on a fact-sensitive basis with the tests of
proportionality and reasonableness. Is there some fear perhaps that a
gay organist would not play at a marriage ceremony or something
similar? I cannot imagine that they would take that view or that the
Church would exclude someone who is gay from doing so on the basis that
it was somehow distasteful. My view is that we are getting the balance
right. The
more that we discuss the issuewe have
discussed it quite a bitthe more it seems better to leave each
issue to be fact-sensitive and lay down the framework as we
have.
The effect of
amendment 42, tabled by the hon. Member for Glasgow, East, would be to
allow not just organised religions such as Churches but all religious
organisations, including faith schools, to rely on the exception in
paragraph 2. For example, a care home run by a religious foundation
would be allowed to justify refusing employment to a care assistant who
was divorced because their wife had left them, or to a nurse who was a
civil partner.
However,
paragraph 2 and the existing exceptions that it replaces apply only to
employment for the purpose of an organised religion, not a religious
organisation. In the Amicus case, which has been referred to, the court
accepted that employment as a teacher in a faith school, for instance,
is likely to be for the purposes of a religious organisation, but it is
not for the purposes of an organised religion. There is a distinction
between the two. A religious organisation could be any organisation
with an ethos based on religion and belief, for which there is a
specific exception in paragraph 3. Employment for purposes of an
organised religion clearly means a job, such as a minister, and it is
that to which Lord Sainsbury of Turville was referring; he was quoted
by the hon. Member for Forest of
Dean. 6.15
pm
John
Mason: I think we all agree that there is a difference
between a religious organisation and an organised religion, although I
hope that the Solicitor-General accepts that it, too, is a complicated
area. Sometimes, an organisation could represent, say, half a dozen
smaller churches so, effectively, although it is not a church, it is
very much a representative speaking for churches and we would expect at
least the leaders of the organisation to be signed up to the beliefs of
those
churches.
The
Solicitor-General: I accept that the matter is
complicated. The organisation might be made up of organised religions,
in which case we are in deep trouble. The hon. Gentleman has made a
point. I do not doubt that it is a complex area, which is why it is
better to lay down a framework and not be specific as we are invited to
be from time to time by the hon. Member for Oxford, West and Abingdon
and to leave distinctions to the
courts. Amendment
43 would reduce the clarity of the exception under paragraph 2 of the
schedule by removing the definition under sub-paragraph (8) of
employment for
the purposes of an organised
religion. The
effect of amendment 189 would be to exclude from that definition those
whose employment wholly as opposed to
mainly involves duties between one of the
definitions two limbs. The existing exceptions about
employment for
the purposes of an organised
religion do
not contain the definition of what that expression means. However,
contrary to what has been suggested, the new definition does not narrow
the scope of the existing
exceptions. There
has been some confusion about what is meant
by for
the purposes of an organised religion,
and
we have therefore included a definition of the term to clear up
misunderstandings, to save courts and tribunals having to go into areas
of potential religious controversy and to reduce the risk of the
exception being misused. The definition is designed to make it clear
that the exception applies to a very narrow range of employment, such
as ministers of religion plus a small number of posts outside the
clergy, including those that exist to promote and represent religion. I
have found examples of that difficult to put forward. That was again
what Lord Sainsbury had in mind when he talked about the existing
exemption under regulation 7(3) of the Employment Equality
(Sexual Relations) Regulations 2003. What he said was entirely
consistent with the Amicus case, which was that regulation 7(3) was
very narrow and affords an exception only in very limited
circumstances. Amendments
46 and 47 would allow employers with an ethos based on religion or
belief to discriminate in relation to work by applying the requirement
not only to be of a particular religion or belief, but a requirement
under paragraph 2(4) of the schedule. For example, a hospice run by a
religious order would be allowed to justify refusing to employ someone
of that religion who was married to a divorcee. By contrast, paragraph
3 of schedule 9 allows employers with an ethos based on religion or
belief to discriminate in relation to work by applying only a
requirement to be of a particular religion or belief, and then only if
that is an occupational requirement. That paragraph provides an
exception that organisations with a religious ethos may rely on, in
addition to paragraph 1 of the schedule. That additional exception
recognises that such organisations need to be able to preserve their
religious ethos and that is why it covers only the protected
characteristic of religion or belief. Paragraph 3 of the schedule is
designed to replicate the effect of the current exception under
regulation 7(3) of the 2003 regulations derived from the framework
directive. Amendment
250 would prevent organisations with a religious ethos that are working
on behalf of public authorities using the exception under paragraph 3.
That exception allows religious organisations to require employees to
be of a particular religion if it is an occupational requirement. To
put it in a nutshell, the Government do not want to interfere with the
religious ethos of the organisations, even though they deliver public
services. It is rather, as the hon. Member for Glasgow, East is
frequently driving at in many of his amendments and new clauses, the
diversity of delivery. We think that we have hit an appropriate
balance.
Dr.
Harris: I am disappointed with that answer, because I
asked the Minister what happens to people who find themselves employed
by a religious organisationI use that term to capture the idea
of organisations with a religious ethos. She might say that the
occupational requirement is the protection, because that has to be
genuine, but during her response she said that she understood that the
purpose of the provision was to allow such organisations to maintain
their ethos. If an organisation says, We cannot maintain our
ethos unless everyone in our organisation is of this religion,
it could sayI hope that she will say that they
cannotthat that creates an occupational requirement. I do not
accept that everyone has to believe the same thing for an
organisation to have an ethos. That is not the case
in schools, thank goodness, although it sometimes feels that way. Will
the Minister clarify those two things: the transfer of employment and
whether an occupational requirement exists by
definition?
The
Solicitor-General: It does not. As I said before, it would
be a question of fact in each casewhether something that had
been done by someone who was not of that faith after a takeover by some
religious organisation had been transformed into a genuine occupational
requirement for the purposes of that religion. That would be a question
of fact. Is it not right, ideally, that it should be a question of
fact?
Dr.
Harris: My concern remains. The Minister said that it was
a question of fact whether a new employer that is a religious
organisation could say that there is a new occupational requirement.
However, if the job is broadly the same, is it her contention that
merely changing the employer, who may feel that there is a need to
preserve the ethos by ensuring that everyone is a Christian, for
example, creates an occupational requirement that did not exist before?
That is my concern and I was hoping for some
clarification.
|