Memorandum submitted by Catholic Bishops' Conference of England and Wales (E14)
1. The Catholic Church broadly commends the moral principle underlying the Bill. We do this believing in the innate dignity of every human being as made in the image of God. Unjust discrimination is fundamentally wrong. The inclusion of religion and belief as a 'protected characteristic' is an important addition to discrimination law, recognising that for believers, their religion is a core and inalienable part of their human identity, valued above life itself by countless martyrs in every century. From the Catholic point of view, every person has a duty to follow their conscience.
2. As the Bill recognises, equality is not an absolute. What is right for a young child is not the same as what is right for a pensioner; different groups represent different levels of statistical risk for insurance purposes; special arrangements are right to meet the needs of disabled people. Parliament has the duty of ensuring that legislation takes proper account of the legitimate needs of different groups.
3. The Catholic Church has significant concerns about the practical implications of some parts of the Bill. If the Bill is genuinely opposed to unjust discrimination, including against religion or belief, then it cannot contain elements which effectively limit the public practice of religion. Freedom of religion is a fundamental human right under Article 9 of the European Convention on Human Rights, which the Government has incorporated into domestic law through the Human Rights Act 1998.
Employment exceptions for the purposes of religion
4. Under existing law, there is an exception relating to sex, marriage, sexual orientation etc where the employment is for the purposes of organised religion. The Bill proposes to restrict this very substantially by limiting the exception to employment where it principally concerns formal worship activities (liturgy) or the promotion or explanation of doctrine (Schedule 9, 2(8).
5. It is gravely disappointing that this marked restriction in what the law permits has been introduced with no prior notice or consultation. Not least because it fails to understand the nature of religious life. The ethos of the Catholic Church should permeate every aspect of its activities: religion is about the whole of life and the whole person; it is not limited to formal worship and instruction.
6. The importance of this varies with the nature of the employment concerned. At the bottom end of the scale are technical services such as accountancy. Higher up the scale would be a residential caretaker post if it involves routine contact with the local Catholic community. But there is a whole range of posts, paid or voluntary, where it is essential that the Church has the right to prefer a candidate whose life is in accordance with its ethos; these might include, for example, youth workers, members of marriage preparation teams, and parish secretaries. What all these have in common is a pastoral, representative, or functional role where their effectiveness in the post for which they are being paid would be severely limited if their life were openly at variance with the teachings of the Church.
7. Without amendment to the schedule, the Church would face the absurd position that it would be unable to exclude from a Parish position dealing with young people a candidate who had divorced their spouse, civilly re-married and created two broken families within the same Parish community.
8. It is important to note that while a person is free to seek employment or not from a religious charity, the charity is not free to vary its charitable objects and must be true to the purposes for which money has been given. A fair balance needs to be struck, given that the individual is free to seek alternative employment but there is no comparable option for a religious organisation.
9. Harassment is defined as 'unwanted conduct ... with the purpose or effect of violating a person's dignity, or of creating an intimidating, hostile, degrading or offensive environment' (clause 24). The burden of proof for this highly subjective definition is reversed in legal proceedings.
10. In relation to religion or belief, the provision is only applicable to employment (clause 37). The practical consequences of this are that a Catholic care home, for example, may have crucifixes and holy pictures on the walls which reflect and support the beliefs of the residents. A cleaner may be an atheist or of very different religious beliefs. Nonetheless if a cleaner found the crucifixes offensive there would be no defence in law against a charge of harassment. To avoid this provision having serious unintended consequences, a test of 'reasonableness' is essential.
Public Sector Duty
11. It is difficult to comment on the proposed public sector duty before the consultation on what specific duties contained under it has even begun. However, public authorities are particularly directed to have due regard to the need to 'tackle prejudice and promote understanding' (clause 143 (4)). This is welcome, provided that it is not about imposing the values of a particular public authority on religious belief. The Catholic Church will, however, be pleased to see public authorities taking into consideration the importance of faith to those who are in receipt of public services, whether in hospitals, schools, prisons or any other environment.
12. However, the provision may create problems for public authorities where different groups, both defined as having 'protected characteristics' under the Bill, each have a diametrically opposed view of the same issue. For example, exempting Catholic staff from a 'Gay Pride' recruitment event could be seen as failing to tackle prejudice against homosexuality; but obliging them to participate could be seen as failing to tackle prejudice against religious belief (to say nothing of harassment). It is regrettable that the Bill provides no indication how such overlapping rights are to be dealt with. A hierarchy of rights would be incompatible with an Equality Bill, but the Bill must provide some indication of what should guide public authorities in such conflicts. Leaving it all to Judicial Review would be unsatisfactory to all concerned.
13. There have been suggestions that in some way religion or belief should have a lower status than other protected characteristics covered by the public sector equality duty. The different strands of the Bill range from innate characteristics such as race, to those which are wholly matters of free choice, such as marriage. Either all are worthy of respect by public authorities, or none are. An Equality Bill cannot coherently argue that some grounds for equality are intrinsically less equal and less deserving of respect than others. Freedoms of religion or belief - and the right to express them - are fundamental freedoms which protect everyone, whether or not they express their beliefs through a recognised religious structure. To suggest they are inherently less worthy of consideration by public authorities than other protected characteristics would directly contradict the Bill's very purpose.
14. This is a large and complex Bill. Important detailed provisions fall to be dealt with through secondary legislation. It will require extensive guidance to translate its intentions into practical information for different types of organisation and different circumstances. The areas covered by the Bill involve strongly held views supported by campaigning organisations and legal proceedings are a possible outcome. Under existing legislation we have seen the development of a risk-averse culture with outcomes as ridiculous as reports of a local authority instructing tenants to take down Christmas lights in case they might offend Muslim neighbours, or of authorities removing the word Christmas out of cultural sensitivity to everyone except Christians. If this Bill is serious about Equality, everything possible must be done to avoid it having a 'chilling' effect on religious expression and practice.
15. The Government is proud of Britain as a diverse multi-faith society. For that assertion to remain credible, this Bill must demonstrate that Government welcomes and supports the contribution which the Catholic Church - along with other religions and individuals with convictions - makes to the common good of our society. The Catholic Church will be happy to work with legislators and their advisers to ensure that the Bill lives up to that ambition.
Note: this submission has been prepared in consultation with the Bishops' Conference of Scotland.
 The Employment Equality (Sexual Orientation) Regulations 2003, para. 7 (3)