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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