Equality Bill

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Dr. Harris: Does the hon. Gentleman accept that, if a religious organisation chose to create a soup kitchen specifically for followers of its religion, it would be permitted to do so under the current exemption even though it is a public service or funded by a public authority? I accept that many would not want to do so, but would not many organisations have that option as the schedule now stands?
John Mason: I am not a lawyer and nor am I am expert on everything that is permitted or not permitted, but I come back to the point of reality against academic theory that was touched on this morning. The religious organisations that I know that run soup kitchens, including Christian ones, do so for the good of people who are suffering and struggling. They just want to help everyone. I cannot imagine an organisation—religious or otherwise—handing out soup in George square or wherever and being selective about it.
Dr. Harris: Using the same language, what about if the organisation was running a school?
John Mason: A school is a somewhat separate area. We have probably covered that ground, but all pupils are welcome to attend the schools in Glasgow with which I am familiar. The schools are both non-denominational and denominational and are, in effect, Catholic and secular. The school is the choice of the parents combined with that of the children. They always have the choice of two schools to which they are entitled to attend.
The position becomes more complex when the service provision implies endorsement. For example, in printing, an Orthodox Jewish publishing house with no religious exemption because its main activity is commercial has no right to refuse tracts denouncing Judaism. What about a Muslim printer asked to print material critical of the Prophet? Reference has already been made to Roman Catholic adoption agencies. They receive public funding but, in the light of Catholic moral teaching, wish to place children only with married heterosexual couples. Under paragraph 2(10), they will have no right to do so.
In effect, those organisations are being forced by law to comply with a different set of moral values or pull out of providing services completely. When the law forces religious organisations into that sort of dilemma, it is hardly promoting diversity. It excludes people of faith and their faith distinctions from service provision.
Mr. David Drew (Stroud) (Lab/Co-op): Does the hon. Gentleman accept that, since the issue arose of the Catholic adoption agencies, many of them have either closed or have had to change the basis on which they operate? As he rightly said, there has been a collapse in diversity rather than an expansion.
John Mason: The hon. Gentleman makes an excellent point. The danger is that we end up with a reduction in the total number of services available for children. We need to balance having the widest possible opportunity for a child to be adopted, which many children long for, with the equality that society is seeking.
Real diversity in the delivery of services to the public surely means that faith-based organisations can offer their services according to the values of the religious belief that defines them. After all, that belief often inspired the civic spirit of such organisations in the first place. Likewise, members of the public should be able to access services provided by organisations that share their faith convictions. Other protected discrimination grounds enjoy the benefit of diversity of delivery—a phrase to which reference has already been made. There are numerous examples of organisations that receive public funding, but which address their services to specific constituencies such as ethnic minorities, the elderly and people with disabilities.
Most of us would agree that the selective provision of services carried out on behalf of a public authority is acceptable, and intrinsic to the nature of the organisation’s work and ethos. Compare that with a situation faced by equivalent religious organisations. Lacking exemptions, they can no longer provide religious service instinctively. Either they comply with the law and operate according to values that contradict their own religious convictions, and basically become non-religious—the point has already been made—or they refuse to compromise and close down altogether. Either way, their clients are deprived of a service they wish to receive precisely because of its religious nature. Again, the Catholic adoption agencies provide a case in point. The issue was foreseen, but the agencies’ fears were ignored, and sexual orientation regulations were passed in the form that schedule 23 replicates. I understand that just two weeks ago, the Catholic Children’s Society here in Westminster announced it was closing down because, as its spokesperson said,
“it would be totally unacceptable for our Catholic agency to act in a way that is at odds with the teaching of the Church.”
Before the current law, we had genuine diversity of delivery in UK adoption services. Those who shared Catholic religious convictions about families could access adoption services that specifically endorsed such beliefs and tailored their services accordingly. Those who disagreed with that conviction could access adoption services provided by non-religious agencies. That diversity seems to be being reduced. My point is that the existing lack of exemptions on the ground of sexual orientation for commercial or publicly funded religious organisations creates problems, for both the organisations and the clients their services are intended to benefit.
There has been a fair bit of debate in this Committee as to where religion fits within discrimination law. I hope that as a result, it is obvious that certain features of the current law relating to religion are felt in some quarters to be unsatisfactory. Rather than replicating those elements in the Bill, amendments 58 and 59 would ensure a much fairer and more flexible legal framework that could accommodate the convictions of religious people involved in service provision, while ensuring that exemptions remain open only to those organisations that need them and whose clients stand to benefit from them.
Mr. Boswell: I have to declare that I am a genuine sceptic regarding what we should do about the matter. I speak as someone who shares the Christian faith with the hon. Gentleman, and I have great respect for his argument. I have not decided, and I would like to listen carefully to what the Minister says on the merits of the amendments. As the hon. Gentleman said himself—this is a substantive issue, but not the one on which I will spend the most time—there is a balance to be found. Neither he nor I wish to reinsert or smuggle in some kind of discriminatory practice that would rightly distress people, and which might be felt, not just by secular people, to be unacceptable. On the other hand, we want to enable those who are acting within the tenets of their religion—we need to respect their good faith in doing so—to have as much flexibility as they can. I would probably strike the balance in a slightly different place from the hon. Gentleman on the issue of adoption agencies, but I do not want to dwell on that. I think we all hope to listen to the Minister carefully on the way in which she defines the grounds.
I rose because I wanted the hon. Gentleman to tell me about amendment 58 in relation to organisations. I think there is an implicit ambiguity in the schedule that may give rise to difficulty, and which is, at least on its own merits, worth exploring, although it is the less obviously politically or religiously sane of the two issues. The question is: what is an organisation? The hon. Gentleman mentioned, for example, a Catholic book shop that clearly is trading commercially or is required to do that. It could trade on one of two potential business models: it could either be “seeking to make a profit”, which would then be ploughed back into faith practice or into extending its activities in terms of the shop itself; or it could provide a service, possibly at a discount, to disseminate its faith without making a profit. Whether those are different in conception, I am not sure. Whether that would differentiate those two models—this would be a matter of religious test—in terms of whether the sole or main purpose is commercial, I am not sure either.
There is also the question of control, which we have touched on in relation to going beyond merely being a priest, officiant or representative, into other activities conducted in the name of religion. Is that particular activity under the control of the Church or religious body—is it, as company lawyers would say, a subsidiary?—or is it a free-standing body that happens to have a faith tag and is largely populated, led by or brought into existence by people of faith?
I would not be at all surprised if the Minister said, “Well, that will be a matter for determination in each particular case.” The difficulty with that, of course, is that if we do not have some handle on this issue—if it is not covered under Pepper v. Hart, for example—we do not really know how we are approaching it. I have not tabled an amendment to this schedule, but I wonder whether we should be probing a little further into whether the term “an organisation” should be extended to bodies for which it is primarily responsible, or for whose direction it is answerable.
I do not have the right words but I think it right to expose the issue, which might be overlooked, because it is apparently less important than the more politically salient issue of whether we should have religious adoption agencies where that is felt to be outwith the tenets of the faith. Both issues are important, and on this occasion—perhaps not for the first time—I shall hang on the Minister’s words.
Dr. Harris: I am pleased to be able to catch your eye, Mr. Benton, as I have four amendments in this group. The hon. Member for Glasgow, East raised an important issue. Although a rerun of the sexual orientation regulations debate is not appropriate here, two things need to be said with regard to Catholic adoption agencies.
First, the Government were absolutely right to do what they did, and the consequences have not been bad, in the sense that the sky has not fallen in. The vast majority of organisations have been able to make arrangements to ensure that they do not discriminate on the ground of sexual orientation against the people with whom they place children. I think that everyone would recognise that those organisations do a good job and that their main aim is to look after the welfare of children. The case was made and voted for in this House—many Conservative Members voted for it—that gay parents are decent parents and can be good parents, and there is no basis for discrimination against them by people placing children, which is a public function.
Emily Thornberry (Islington, South and Finsbury) (Lab): As we are making that point, the largest group of MPs who voted for that consisted of Labour MPs.
Dr. Harris: Yes. I think there were rebels in all parties, but there was cross-party consensus. My point is that there was a big majority in the end. I suspect that the hon. Member for Daventry voted along those lines, as well, as his record is good and on such issues, he was always associated with the views of the hon. Member who is now the Speaker.
Catholic adoption agencies have not turned out to be a problem. The problem is that if one says that organisations should be allowed to discriminate on the ground of sexual orientation because of their doctrine, one gets into difficult territory. Gay people might feel that they should not be discriminated against simply on the basis of doctrine, because historically, some Churches—fortunately none of them exist in this country—have had doctrines against mixed marriages, for instance; the Dutch Reformed Church of South Africa is a good example. That is just as offensive to people on the receiving end as discrimination in the public sphere or the commercial world, and they should be protected against it.
However, having said that, I have some sympathy with the problem that the hon. Member for Glasgow, East identified—he might want to listen carefully to this—of printers seeming to endorse something that they do not. That issue was not raised specifically during the passage of the sexual orientation regulations and the Equality Bill in 2006, but en passant; however, it was not dealt with in these terms. The hon. Gentleman makes an important point. I have much more sympathy for commercial organisations having the right to discriminate—such as Muslim organisations that do not want to print something hostile to the Prophet; or, indeed, Christian organisations that find that because they are commercial, they must print something satanic—than I do for organisations delivering a public service having such a right. If the Government were in the mood to negotiate—I suspect they are not—perhaps a quid pro quo could be arranged to provide more scope for commercial organisations, particularly in the field of printing, not having to seem to endorse something, and to provide some scope on public functions. I shall reflect on what the hon. Gentleman said about that example.
1.45 pm
Mr. Drew: One problem is that some of us believe there should be a distinction between public and private bodies, but in these days of outsourcing and externalisation of contracts, where does one draw the line? It is impossible to know.
Dr. Harris: The hon. Gentleman makes a good point, but it is possible to draw a line, and the Bill does so in other areas. I drew attention to the positive duty in clause 143, and the Government rightly drew the line at a public authority or someone under contract to a public authority or otherwise performing a public function. I hope he will consider further that there may be scope for recognising that when an organisation is delivering a public function, it often does so to a vulnerable and captive group of people who should not be discriminated against. Many religious organisations do not discriminate. I accept 100 per cent. that many do not, but some do and we believe that a line should be drawn around delivery of public functions, even when that is outsourced. I have made the point before, so I will not make it again.
Amendment 295 explores commercial activity. It raises a genuine issue that arose in our evidence sessions. Paragraph 2(2) states that
“an organisation whose sole or main purpose is commercial”
cannot make use of the exemptions. That is fairly wide, because it covers Christian and Muslim printers. Unfortunately, it does not cover public functions that are not solely or mainly commercial. The purpose of the amendment is to probe the Government on whether an organisation that is just bidding or tendering to carry out public functions on behalf of a public authority is in the commercial world. Adoptions R Us Ltd might have a religious basis, but it would be solely or mainly commercial. If the Solicitor-General agrees, perhaps there is less of an area that is not appropriately covered.
The other way of looking at the matter is to consider the activity, which is what amendment 296 explores. It would add to sub-paragraph (7)(c): where this
“is not a commercial activity.”
It is not duplication because sub-paragraph (2) refers to an organisation that is commercial. The church hall example is a good one. There was a clear disagreement in the oral submissions that we heard from Stonewall, which had a clear view on the Government’s example in their explanatory notes—I hope that they will put their opinion on the record, which the Solicitor-General attempted to do in the oral evidence part of our proceedings—
“A church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.”
Is that an organisation that is solely or mainly commercial? If the letting out were done by a sub-organisation that existed to let out or manage the church hall, it would be solely and mainly commercial, but if the church let it out without the involvement of the sub-organisation, it could not be said that its sole or main purpose was commercial. Even before considering the role of mammon, that would not be its main operation. Is it right that it should be acceptable in one setting and not in another to discriminate against, for example, the lesbian and gay Christian movement solely on the basis of how the church letting operation is organised? That seems to create arbitrariness, rather than dealing consistently with a mischief, if there is a mischief.
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