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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 should—I agree with him—give 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.
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 everybody’s 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, including—dare I say—the 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 employee’s 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 fine—I 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 religion—but 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 issue—we have discussed it quite a bit—the 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 definition’s 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 organisation—I 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 say—I hope that she will say that they cannot—that 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 case—whether 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.
 
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