Mr.
Boswell: The hon. Gentleman makes some reasonable points,
but does he not agree that there is danger in this regard? Although
there may be good, sensible organisational reasons that reflect
management theory, if one dares put it that way, for a separate
organisation to be set up to focus on the specific subsidiary activity
of letting the church hall, allowing the parish priests to get on with
their pastoral duty, it would be bizarre if something that was sensible
in administrative terms created a difficulty in terms of potential
liability under the clause. My point possibly reinforces the one that
the hon. Gentleman is
making.
Dr.
Harris: The hon. Gentleman’s point is the corollary
to mine, which is that, if I am right, there would be a disincentive
for the church to delegate the renting operation. We should come to
first principles. Is it right that a hall can be let to all sorts of
organisations, except gay organisations? That is wrong. Therefore this
provision ought to be tightened up to make that clear, because we are
considering the ends; it should not be about organisational
matters.
John
Mason: Again, I wonder about the practical implications of
what the hon. Gentleman suggests. If a church cannot control who it
lets its hall to, I suspect that a lot of churches will not let them at
all. People would suffer as a result of our becoming strict on this
point, including the single mothers who are taught how to cook by a
community group in my church’s
hall.
Dr.
Harris: The same argument was used in respect of gay
adoption, when people said, “If we’re not allowed to
discriminate, we won’t play and we’ll take our ball
home.” Those terms were used in the debate about Catholic
adoption—not by me, but by Labour and some Conservative hon.
Members when describing that attitude. It is blackmail,
essentially—I do not mean that in a particularly nasty way.
Essentially, people are proposing to withdraw their service if they are
not allowed to discriminate. Of course, they will lose money as well,
so it is their decision to
make. I
am asking the Government what they think the situation is with regard
to a church in the two positions that I have
mentioned. My
final question on the amendment is as follows. If someone wanted to
rent a church premises to put on a lawful play—perhaps
“Jerry Springer: The Opera”—that some people do
not like, and if those premises were not used for religion any more but
were owned by an
organisation that existed to look after and rent out those premises,
would it be okay for such a commercial organisation to say,
“Because this is sacred ground, we’re not going to allow
you, as an organisation, because your activity is non-theistic or
atheist, to rent our hall”? It would be interesting to know
whether that would be religious discrimination or whether it would just
be picking and choosing what activities are allowed in a church
hall. I
have already dealt with my proposed amendment to sub-paragraph (10), in
the sense that amendment 251, which would insert the words, “or
religion”, asks the Government to say that those organisations
delivering a public service should not be allowed to discriminate on
the basis of religion. I have explained previously, so I will not do so
again, that without the amendment, when combined with the public sector
duty to promote equality of opportunity, the current provision may lead
to other religions seeking their own specific service as soon as public
services are delivered to one religion only. I do not think we want to
go down that
path. Amendment
305 was tabled so that I can ask why the restriction that currently
only relates to sexual orientation, but which we believe should apply
to religion as well, only relates to section 27, which deals with
services, and not to other parts of the Bill dealing with premises and
associations, for example, which, by analogy, might be regarded as
being related. I may not have understood the architecture of the
Bill. This
has been a good debate that was appropriately short, given that we have
debated these things
before.
The
Solicitor-General: The Government sought to obtain a
difficult balance as long ago as the passage of the Equality Act 2006,
and reasserted that balance in the Equality Act (Sexual Orientation)
Regulations 2007, so there is nothing new under the sun, and not
terribly much in this debate, I am afraid, compared with previous ones.
We think that we have found the right balance, and the amendments would
change it in one way or the other.
Amendment 58,
for instance, would extend the exemption for religious and belief
organisations to cover even primary commercial organisations, so an
entirely commercial enterprise such as a Catholic bookshop could
presumably refuse to serve someone because they were
Jewish. Amendments
295 and 296 were tabled, I think, to enable the Committee to consider
where the line should be drawn. Much would depend on the specific
details of any case about what is or is not a separate
organisation.
The hon.
Member for Daventry raised the question of when something would have a
solely or mainly commercial purpose, and when it would not. He
predicted the only answer that I can give, which is that we put the
best definition we could come up with into the clause. It will be a
matter not of mathematical percentages but of a court, if it comes to
that, making an assessment on the basis of the facts in each
case.
Certainly, if
a church kept a commercial activity to itself it would have more scope
for discriminating than it would if it subcontracted to a separate
company, even though the activity would take place under its auspices;
the subcontractor would be likely to be a different organisation from
the church or other organisation. So
although I can see that, at the edges, the provision might look faintly
odd, it is none the less as good a way as can be thought of to set out
what is
intended. Dr.
Harris: Has the Minister considered referring to an
activity that is commercial? That would give much more certainty, given
the problem, which she quite fairly recognises, about when an
organisation is a religious organisation, and the degree to which the
management is contracted out. Thinking about it as an activity would
clearly take away any of the liturgical stuff, and the stuff that the
church does as its main activity, and would just leave the commercial
activity that a church might be involved with free from
discrimination.
The
Solicitor-General: The definition is posited on what I
think is the sensible thing: the purpose of the activity, rather than
the activity itself. The question is whether it is solely or mainly
commercial. That must be the right
approach. Amendment
295 could potentially mean that any organisation that could not be
considered solely commercial could take advantage of the exemption,
even if it was predominantly commercial. The effect of
amendment 296 would be that if a particular service provided
by a religious or belief organisation was commercial, it would fall
outside the exemption, where the issue was sexual orientation
discrimination, but not where it was religion or belief.
The church
hall example stands. Under the amendment, if there were, for instance,
a nominal fee for use of a church hall, to contribute towards its
maintenance costs, it would be possible to refuse to let the hall to
people whose religious beliefs were offensive to the followers; but
that would not apply in the case of a gay or lesbian group, even if
letting to that group would—and it is hard to understand why it
would—outrage some particular members of particular religious
communities. The question is really one of trying to achieve balance
and proportion. The test seems to us to be the right
one.
2
pm Amendment
305 would operate in different ways, specifically with respect to the
performance of functions by a religious or belief organisation, if it
was under contract to a public authority. Paragraph 2 of
schedule 23 does not allow discrimination on grounds of
sexual orientation in the provision of publicly contracted services.
However, it does in theory allow such discrimination in relation to
disposal of premises, and management of premises in which the
organisation retains an interest, if the other requirements in the
paragraph are met. It is hard to see how a contract with a local
authority would affect that. I cannot see the point of the amendment,
but the hon. Member for Oxford, West and Abingdon makes it clear that
his amendments are probing anyway.
A small group
of people from the local Anglican church getting together and
organising Christmas lunch for the needy in their religious community
is one thing, but the Church House bookshop is quite another.
Bookshops, hostels and the like could have a religious or other ethos,
but they are essentially commercial. The Government’s position
in that regard is clear: commercial organisations should provide goods,
facilities and services without prejudice. However, not-for-profit
organisations, which may engage in some level of commercial activity
to support their wider activities, should not automatically be excluded
from the benefit of the exemption in paragraph
2. Amendment
59 also covers familiar ground. The amendment would allow a religious
or belief organisation to discriminate on grounds of sexual
orientation, even when acting on behalf of a public authority. That
brings us back to the much-discussed issue of Catholic adoption
agencies. The Government made it clear when the regulations were
introduced that there would be no specific exemption for faith-based
agencies offering publicly funded services, and that remains our
position. However, we did not, as the hon. Member for Glasgow, East
asserted, disregard the concerns of faith bodies at all. Significant
funding was made available to help all of them to understand the
regulations, which they said was extremely
helpful—£500,000 was given to voluntary adoption agencies
to help them to understand and tailor their services so that the
regulations were complied with. Most agencies have moved to an open
policy: assessing same-sex couples as prospective adopters too. There
has not been any impact on services. I am in the rare but happy
position of agreeing totally with the hon. Member for Oxford, West and
Abingdon that the change has done no harm and was right.
To clarify, a
Catholic or other religious adoption agency that did not accept public
funding would be able to benefit from the exemption in paragraph 2,
because it would only be prevented from discriminating on the ground of
sexual orientation if it was acting on behalf of a public authority. I
hope that clarifies the matter for the hon. Member for Glasgow,
East. Amendments
59 and 251 address the same topic from opposite directions. The
difference in approach between religion and belief and sexual
orientation is justified. There could be a legitimate reason why a
local authority chooses to contract a number of organisations to
provide a particular service, including a religious organisation that
only provides that service to those of a particular religion. The
provisions are not new. It is entirely legitimate for a council to
contract a Jewish organisation to provide kosher meals on wheels, but
we cannot envisage any circumstances in which a religious organisation
providing a public service should legitimately be allowed to provide it
only to those of a particular sexual orientation.
There must be
a balance. The issue has been debated many times—not least in
the Committee—and whether the balance is right is a thorny
question. However, there were debates before the Equality Act in 2006
and the regulations in 2007, all of which have informed where the line
is drawn, and we think that we have the balance right. The fact that
two completely conflicting amendments have been tabled also cheers me
into thinking that we have the right
balance.
Dr.
Harris: I want to respond on two points. First, there is
nothing wrong with asking a Jewish organisation to deliver kosher
meals—we cannot prevent such an organisation being a provider
when a secular one is allowed. However, is it necessary to restrict the
delivery of kosher meals to Jewish people and prevent delivery to
Muslims, if they are happy to take the food? Even if the function is a
public one, funded by public money, that is unnecessary.
Secondly,
will the Minister consider further the interesting example that she
gave? In her response she recognised the point—perhaps I
recognised her point—that if a
Christian bookshop is a commercial bookshop, it cannot refuse to serve
Jewish customers. In the analogy with the church hall, however, if the
church runs the bookshop, the organisation is not mainly or solely
commercial. Therefore, if that bookshop is not, in fact, delegated to
an organisation whose purpose is solely or mainly commercial, we could
have a situation where a bookshop of one religion would be able to
discriminate. I do not mean to use the example of Christians
discriminating against Jews as I do not believe that would ever happen,
but there might be examples in other cases. Therefore, there is a
problem, Interestingly,
in her response the Minister talked about the activity being
commercial.
The
Solicitor-General: The
purpose.
Dr.
Harris: The Minister is right, and I am glad that she has
corrected me. She said that the purpose needs to be commercial,
but that means the purpose of the organisation. My case is that it
might more satisfactorily meet the problem of a bookshop that is not
delegated, if the language referred to “The activity, the
purpose of which was solely or mainly commercial”. I think that
covers all bases, and I hope that, even if she does not rise to respond
again, the Minister will consider that. That might solve the problem of
the fact that churches and religious organisations can now see how to
get round the solely or mainly commercial aspect, by not having a
subordinate organisation running that activity.
The
Solicitor-General: We think that the way we have done it
now is better. It is up to organisations to manage themselves as they
see fit. I am prompted to say that a bookshop is not likely to meet the
other criteria anyway, so how it is organised probably would not make
all that much difference in the example given by the hon. Gentleman.
That is where we are; we think that we have the balance right, and I
invite the hon. Member for Glasgow, East to withdraw his
amendment.
John
Mason: I have listened to what is being said. I am
encouraged by the Solicitor-General when she uses words such as
“difficult balance” and “proportionate”,
which to be fair she has done throughout the sittings of the Committee.
That is what we are all looking for.
I am a little
disappointed by some of the other comments. I wonder whether the
evidence supports the idea that there has been no problem or loss of
service, when adoption agencies are closing down. The examples of a
bookshop or publisher not serving somebody were definitely not what I
was aiming at. I have no problem with legislation saying that a
bookshop or a printer must serve anybody who comes in. The problem is
about the material. Is the bookshop being forced to sell or publish
material that it is not happy with? Is the printer or the website
designer being forced to produce material that they are extremely
uncomfortable with? That would require some negotiation, as was
suggested by the hon. Member for Oxford, West and Abingdon, and I agree
with him about that. Perhaps somebody could look at that point
later.
The issue of
religious organisations being provided with funds to understand and
tailor their practices is, I think, a draconian method whatever it
applies to. It
implies, “We will not discuss it, we will just give you money to
understand us.” On the basis that all those matters have been
discussed, I beg to ask leave to withdraw the amendment. Amendment,
by leave, withdrawn.
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