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The Solicitor-General: I do not think that it is difficult. It is a question of fact. If the nature of the job has changed so that it has a religious component, perhaps there would be a genuine occupational requirement. However, if the job is the same, and the takeover did not require any adaptation to the ethos of the new owner, then there probably would not be. On such a theoretical example, it is impossible to say yes or no. I cannot see how the hon. Gentleman will be assisted by an answer. It seems pretty straightforward that the circumstances would have considered to see whether the religion tried to say that there was an occupational requirement, whether that could be genuine in the context of what had gone before, or whether it might be because something in the way that the service is delivered by that religious body requires the religious component. Therefore, as I said before, it is a question of fact.
John Mason: The idea that a religious organisation would employ only people who belonged to that religious group is not our normal experience. My experience of Catholic schools in Glasgow is that only the promoted posts would insist on being Roman Catholic. The other teachers and staff could be of any religion or none.
The point about a new employer works both ways. It has been suggested that someone goes from being in secular or humanist employment to being in religious employment. I do not know where the British Humanist Association fits in as we noticed in the evidence sessions that it counted itself as a religion when it suited it to do so. An employee could also have a problem going from an organisation with a more religious ethos to one with a humanist or secular ethos that was unsympathetic. Such situations will always be handled delicately and we need to be aware of that.
Dr. Harris: That person would be protected by the employment regulations that protect people from discrimination on the basis of their religion or belief. There is no exemption sought by the secular world to specifically discriminate against religious people— regulation 7(3)(a) in the old employment directives. So it is not equal in that way. It is a specific exemption to be used by religious organisations, not secular ones. I hope that the hon. Gentleman will accept that.
John Mason: My point was that there is a problem both ways. For example, there may be a problem for a nurse who had been working for a religious nursing home and was used to praying for the patients who then had to switch to a nursing home where they were not allowed to do that. Clearly, that would work the other way as well.
I agreed with some of the points made by the hon. Member for Stroud, such as tolerance, choice and including different views. That is what I am looking for in all the amendments I have tabled. I am disappointed that the Solicitor-General is not taking on more of the content of the amendments. Even though we all support proportionality, to take it out would have resulted in better law. However, I am encouraged and appreciate the wording that she used. She said that it is a delicate area and that perhaps the youth worker was not the best example. She also talked about getting the balance right and diversity of delivery, which are the kind of reassurances that I and other organisations are looking for. I thank her for that. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Solicitor-General: I beg to move amendment 68, in schedule 9, page 181, line 36, leave out ‘work’ and insert ‘employment’.
This amendment would ensure that paragraph 2 of Schedule 9 refers consistently to “employment”.
The Chairman: With this it will be convenient to discuss Government amendments 69 to74.
The Solicitor-General: These are technical amendments and minor drafting oversights.
Dr. Harris: To remind myself that I wanted to raise a question on this, I tabled an amendment that I knew would not be selected. It was an amendment to the Government amendment and I wanted to give advance notice to the Minister that I wanted to query one area. Why did she choose in amendment 69—the others in the group are consequential to that—to extend an exemption to cover section 52(2)(d), which talks about subjecting (d) to any other detriment. My understanding is that it is unusual to give carte blanche through an extension. For example, clause 80(2)—the part of the Bill dealing with education—states:
“The responsible body of such a school must not discriminate against a pupil...
(f) by subjecting the pupil to any other detriment.”
Although many of those provisions are lifted in the schools exemption in schedule 11, the specific provision that the pupil should not be subjected to “any other detriment” is not lifted in the religious exemption. I remember that the Government amended the Equality Act 2006 to ensure that there was not the ability to subject the pupil to any other detriment. Therefore, more explanation is needed about why the protection that would otherwise exist from section 52(2)(d) not being included in the exemption is now proposed to be included. I do not have a problem with the rest of the increased scope that the Government are proposing in their amendments.
The Solicitor-General: It is an amusing idea that tabling an amendment that is not selected is a form of giving notice to the Government. Paragraph 5 of schedule 9 allows an employment service provider to restrict access to the service that they provide to people with a particular protected characteristic if it is an occupational requirement for the work to which the service relates. Clause 52(1) and (2) set out how an employment service provider must not discriminate in providing services. The category of “any other detriment” in subsection (2)(d) is residual, sweeping up anything that does not fall within the preceding circumstances. If we accept that an exception is appropriate in principle, it should apply to all circumstances giving rise to liability.
An employment service provider should be able to align services with the lawful needs of the employer and the requirements of the jobs to which its services relate, as is currently the case. It makes no sense to pick and choose to what circumstances the exception may apply in that context. That would only encourage claimants to structure their allegations so as to bring no claim within what is intended to be a residual category to avoid applications of the exception. I hope that that is a satisfactory explanation.
6.30 pm
Dr. Harris: I am glad that the Minister had something ready to read out in relation to my point. Sometimes—I accept that this is not true in this case—Government amendments are tabled late in the day and a starred amendment is the only way to give notice that I want to raise a point on them, other than to make a telephone call to the Minister’s team, which I will be happy to do in future if tabling a starred amendment offends her. I will have to read what she has said carefully, either on the record or, indeed, now, but I have no further objections to the group of amendments.
Amendment 68 agreed to.
Amendments made: 69, in schedule 9, page 182, line 26, leave out ‘52(1)(b) or (c) or (2)(a) or (b)’ and insert ‘52(1) or (2)’.
This amendment would expand the scope of the exception in paragraph 5(1) of Schedule 9 (permitting discrimination in relation to work for which having a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.
Amendment 70, in schedule 9, page 182, line 30, after ‘52’, insert ‘(1) or (2)’.
This amendment would limit the exception in paragraph 5(2) of Schedule 9 (permitting discrimination in relation to training for work for which having a particular protected characteristic is an occupational requirement) so that it applies to discrimination only and not harassment or victimisation.
Amendment 71, in schedule 9, page 182, line 33, leave out ‘52(1)(b) or (c) or (2)(a) or (b)’ and insert ‘52(1) or (2)’.—(The Solicitor-General.)
This amendment would expand the scope of the exception in paragraph 5(3) of Schedule 9 (permitting discrimination in reliance on a statement that a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.
Mr. Drew: I beg to move amendment 184, in schedule 9, page 183, line 25, leave out paragraph 8.
The Chairman: With this it will be convenient to discuss amendment 185, in schedule 9, page 183, line 35, leave out paragraph 9.
Mr. Drew: I unashamedly have taken the amendment on from my hon. Friend the Member for Gateshead, East and Washington, West (Mrs. Hodgson). I am firmly of the opinion that she entered the Government’s Whips Office as a result of her tabling the amendment, so I look forward to my own preferment in due course as a result of bravely treading where she has left off.
This is an important issue, and I hope not to delay the Committee for too long with a proper debate about the lovingly called national default retirement age. The amendment, which was tabled with the support of the Liberal Democrats, would remove the NDRA, and I will happily look at the implications of that. I recall a gentleman coming to see me at my constituency surgery around six years ago begging me to intervene in his case. He had achieved his ultimate ambition of getting a job with the Department for Environment, Food and Rural Affairs at the age of 63. The job was that of an animal control officer, which is not necessarily my idea of a nice job, but it was what he wanted to do, and he wanted to continue to do it. At 63 years of age, he was told by his employers that he could expect a very short time in the job. He was upset because he had hoped that he could continue for some time, not least because it was the first job he had ever had that paid a pension. That says something of what life is like even in the 21st century. I managed to get an extension of his working life to 67 but in due course he was asked to retire. Even that short time ago, that seemed to be the norm. Amendment 184 tries to remove the notion of compulsory retirement and amendment 185 would require notice to be given to someone that they will be compulsorily retired at least six months before they are 65. I hope that the amendments might become irrelevant because of an ongoing court case. My hon. and learned Friend the Minister may be able to say some things about that.
The Employment Equality (Age) Regulations 2006 ensured that people could not be discriminated against on the basis of their age in employment and occupation unless it could be objectively justified. Regulation 30 introduced the idea of a national default retirement age as an exception to the general rule of non-discrimination on grounds of age. That allows employers to operate a mandatory retirement age of 65 or over, allowing them to terminate the employment of a member of staff on the grounds of age. Employers can also refuse to recruit people over the age of 65, and that has been laid out in schedule 9 of the Bill. Before the law came into forces, a number of organisations, principally Age Concern, took a view. I declare an interest as a trustee of Stroud Age Concern. One has to play one’s cards close to one’s chest as we are not all that far away from the dreaded age of 65. I also think it is interesting that we can force our employees in the Houses to retire, when MPs do not face a similar prospect. Only the electorate can do that to them.
Ms Diane Abbott (Hackney, North and Stoke Newington) (Lab): My hon. Friend makes the point that MPs cannot be forced to retire, but would it not be better if we were? It would provide opportunity for young, dynamic people to move into constituencies.
The Chairman: Order. I ask the hon. Gentleman to ignore that intervention. It was way out of order.
Mr. Drew: I do not know whether that was on the grounds of sexism or ageism, but I will take your guidance, Lady Winterton, and carry on.
The charity’s position is that the regulations are unlawful, both by introducing the NDRA and by giving employers far too much scope to introduce other age-based rules in the workplace. On the basis of that, the case was referred to the European Court of Justice in 2007. The final ruling of the Court on 5 March 2009 stated that the UK’s retirement laws will only comply with the EU directive if they have a legitimate aim related to employment and social policy rather than simply to reduce costs for individual employers. The Court went on to emphasise that the UK Government will have to meet a high standard of proof in demonstrating that their policy aim is legitimate. The case is currently adjourned, as my hon. and learned Friend knows. We will receive the final verdict of the High Court hearing on 16 and 17 July 2009. It may be that what I am doing will be deemed irrelevant, because the High Court could say that we have to bring UK law in line with the EU. Much as I do not like saying such things, perhaps the EU could ride to our salvation.
Why is the issue important? In these days of fairness, justice and equality, it seems unfair that people approaching or at the age of 65 are always the ones who have to be made redundant on the basis that they should be retiring anyway. The issue is particularly important at the moment, with the recession taking hold. We all know and, indeed, have cases in which people are deemed to be expendable because of their age, yet they are often the most valuable people in their workplace. They have a lifetime’s experience of employment, with all the expertise that goes with that. The situation seems very unfair.
The position also seems to be completely contrary to the Government’s aims of encouraging us to retire later and therefore not to take our pension until later. I am not here to advocate the policy of eradicating retirement, much as the Government might think that that would be a jolly good thing because of all the money that it would save. At the same time, we are in the era of giving people some choice, and the Government would be keen if people wished to continue working and to forestall the payment of their pension.
Although the business lobby has misgivings, it is not entirely against the idea that there should be some debate and clarity, and, indeed, where such cases exist, individuals should be allowed the freedom to keep working. However, according to the Bill, they will not be able to do so. I am pleased to say that public opinion is ahead of us in Parliament, let alone ahead of the Government, and there is a growing swathe of opinion that it is right and proper for people to have the opportunity to continue working.
Mr. Harper rose—
Mr. Drew: I give way to my near neighbour.
Mr. Harper: We would be very near neighbours if it were not for the River Severn, which divides us. The hon. Gentleman implied that the measure will prevent people from being kept in employment. All it says to employers is, “If you want to get rid of someone at 65 because that is your mandatory retirement age, you’ll able to do so.” It in no way stops them keeping someone in work for as long as they want. If that suits them and suits the employee, there is nothing in the Bill that stops them doing so.
 
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