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ACDA said that based on the survey data, there may be 100,000 people in Britain who are affected by such discrimination. I do not know-I presume the Minister has had professional advice on this-whether an online
survey in which 300 people participated and the findings of nine focus groups is sufficiently robust research to draw the conclusion that 100,000 people suffer such discrimination. If that is true, the House will want to look at it very seriously, but on the face of it, I am not sure one can draw that conclusion from the depth of that research. As I said, I am sure the Minister has had advice from officials and statisticians on whether it would be safe for the House to reply on that basis. I am sure she will remark on that when she responds.
My right hon. and learned Friend the Member for Folkestone and Hythe, to whom I was not allowed to respond earlier, tabled amendment 196, which refers to the age discrimination provisions in the Bill. We welcome the introduction of measures to ban age discrimination, but we raised in Committee the fact that the provisions in the clauses on age discrimination, principally clause 192, which amendment 196 attempts to improve, are very wide powers, and that the vast majority of the detail was going to be brought forward by secondary legislation.
My right hon. and learned Friend has a company in his constituency that would be affected by the measures, for which he will speak up very effectively later if there is time, but we raised its concerns, and those of a number of other organisations, in Committee. We asked whether the Bill would allow very sensible, worthwhile business models that give older people better terms and conditions, which we termed "good discrimination", for things such as holidays, leisure facilities and insurance products, and whether such models would be sufficiently recognised.
We were concerned about that at the beginning of the Committee, but less concerned after the Minister published the Government's consultation on age discrimination, because it adequately recognised the concerns of those business organisations and asked for their responses. The consultation has now closed, but we have not yet seen those responses or the Government's response. The regulations that implement those age discrimination measures will be informed by the consultation and we will be looking closely at whether they accurately reflect the consultation and the concerns of those business organisations. Clearly, our support or otherwise is contingent on that. My right hon. and learned Friend may not have a chance to make these points, but I know he will be looking to the Minister for a clear assurance that the regulations will ensure that businesses that legitimately provide products based on the age of consumers will be able to continue. He and many who are employed in his constituency will welcome a clear response from the Minister on that.
The final areas on which I want to touch briefly relate to religion. New clauses 31 and 32, the latter tabled by my right hon. Friend the Member for Maidstone and The Weald, will-from the point of view of the Conservative party-be subject to free votes, so what I am about to say will be my personal views. I also have some questions for those who tabled the new clauses, the answers to which I will take into account when I cast my vote later. The two clauses are very similar in their drafting, although new clause 31 refers to care homes for the elderly and new clause 32 refers to adoption or fostering agencies.
Both clauses specifically refer to voluntary care homes and voluntary agencies. How would that affect those agencies that take money from public funds? My view is that if a care home or adoption agency takes money from the taxpayer and provides a public service, it
should do so in a non-discriminatory way. For example, if a voluntary care home has any clients who are paid for by the taxpayer, does that change the nature of that organisation and would it affect the impact of new clause 31?
My second point refers to the drafting of the new clauses. Both specifically say that a care home or adoption agency would be able to restrict the provision of their services or facilities to a person on the grounds of their sexual orientation. If they were to restrict the provision of services, they would have to refer the person seeking them to another organisation that could provide services for them. That restriction could be imposed only if necessary to comply with the doctrine of the organisation or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. I am a little confused about that, because most of the religions-and, given the supporters of the amendments, we are largely talking about Christianity-do not have a problem with someone's sexual orientation, per se, but with the practising of that sexuality. Those religions also have a problem with those who have sex outside marriage, even if they are heterosexual, but the clauses refer only to sexual orientation. It would be helpful to know why they were drafted in that particular way.
Dr. Evan Harris: I understand that the hon. Gentleman is speaking for himself and that it is his view that if one is in receipt of public funds and delivering a public service, one should not discriminate, and that therefore, for example, a Catholic adoption agency should not say that it will not provide services to gay couples. On the same basis, is it right that a Catholic adoption agency, funded by the public and delivering a public service, should be able to say that it will not provide services to Jewish, Protestant or Muslim couples seeking to adopt?
Mr. Harper: If the hon. Gentleman will forgive me, I shall limit my remarks to the new clauses that are under consideration today, given that we are short of time. Otherwise, we would be in danger of widening the debate and I suspect that you, Mr. Deputy Speaker, would jump on me from a great height if I did so.
Amendment 37 was tabled by the hon. Member for Stroud (Mr. Drew) and it refers to schedule 9 to the Bill and an exemption provided for religious organisations in employment matters. There is an interesting dispute here about whether the Government are changing the existing law. The provision in the Bill is about the definition of employment for the purposes of an organised religion, and the amendment would remove that definition from the Bill.
There are two parts to the definition:
"Employment is for the purposes of an organised religion only if the employment wholly or mainly involves...leading or assisting in the observance of liturgical or ritualistic practices of the religion, or...promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)."
Many Christian and other religious organisations are concerned that the definition is new, will change the law and narrow the scope of the exemption. They are concerned because they believe it will prevent them from using the exemption for a number of posts in their organisations where they are currently able to do so.
John Mason: The hon. Gentleman said that many posts would be excluded by the definition, but some people feel that all posts would be excluded. Let us consider the definition:
"wholly or mainly involves...leading or assisting...liturgical or ritualistic practices...or...promoting or explaining the doctrine of the religion"
Even a full-time priest, minister or pastor would not "mainly" be doing that, because much of their time is spent visiting the sick and perhaps with funerals and so on. In fact, therefore, the definition could exclude everybody.
Mr. Harper: The hon. Gentleman, who served on the Public Bill Committee, anticipates some of my later remarks. Ministers and priests have written to say that they do not think that what they do would be accurately captured by the definition. On some areas, there is a dispute between the Government and organisations, but the Government have been clear about one thing: ministers, priests and those who lead worship in churches should be covered by the definition. However, many organisations are now concerned that even those positions would not be covered, so it would not even achieve what the Government hope.
Andrew Selous (South-West Bedfordshire) (Con): Does my hon. Friend agree that there is a double standard here? It seems to be in order for the Labour party to discriminate against committed Conservatives applying for a post as, for instance, director of a research department, so why should faith-based welfare organisations not have the same degree of free association, whether they are Christian or of any other religion? That is a fundamental principle, and it strikes me as odd that we exempt political parties and treat them in one way, but treat faith-based organisations completely differently.
Mr. Harper: My hon. Friend makes a good point, and he will not be surprised to learn that it has been made by a number of those faith organisations that feel that they are being treated unfairly.
When we raised that point in Committee-we discussed it at length-I think that the Solicitor-General's argument for the Government was that the provision did not change the existing law, but simply clarified the definition to save courts and tribunals having to do it themselves. Effectively, she said that it did not change the position. We probed and argued, and the more that I learned about it afterwards, the more time that I took and the more that I looked into it, the less convinced I was that she was right. I think that the definition narrows the scope of the law. That is why I have put my name to amendment 37 and why Conservative Members will be happy to support the hon. Member for Stroud if he presses it to a vote.
Mr. David Burrowes (Enfield, Southgate) (Con): Does my hon. Friend share the concern of a wide spread of Christian denominations, from the Church of England through to the Fellowship of Independent Evangelical Churches, which do not understand why the Government have departed from their position in the Employment Equality (Sexual Orientation) Regulations 2003? In the 2004 Amicus case, the Government said that they were engaged in
"striking a delicate balance between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion",
"concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion".
Is it not the case that the provisions will affect that balance and strike at the heart of religious liberty?
5 pm
Mr. Harper: My hon. Friend is right. I was just getting on to why we have ended up in this position, and from a European route too. The European Commission has issued a reasoned opinion that claims that the UK exemptions passed in 2003-the regulations to which my hon. Friend referred-are broader than allowed by the employment directive of 2000. Indeed, the Commission is effectively lobbying the House, in a way that I do not feel is entirely appropriate, by saying:
"We welcome the proposed Equality Bill and hope that it will come into force quickly".
The European Commission has no business telling the Parliament of the United Kingdom whether we should pass legislation. Frankly, that is none of its business. It would be interesting for the Solicitor-General to tell us whether the Government have indeed tightened the Bill in response to the Commission's reasoned opinion.
Mr. Harper: This is interesting, because I think that I am right in saying-the hon. Gentleman will correct me if I am wrong-that he and I both think that the Government have narrowed the scope of the exemption. He welcomes that-if narrowing is indeed what the Government have done-whereas we do not; but interestingly, we both think that the narrowing has taken place. In Committee, the Solicitor-General held the view that there had been no narrowing. [ Interruption. ] The right hon. and learned Lady repeats her view now from a sedentary position. However, I do not think that hon. Members will find that convincing, which is why it would be helpful to test the opinion of the House.
Mr. Drew: I thank the hon. Gentleman for giving way, seeing as we are discussing amendment 37 in some detail. Like him, I am concerned about the position of the European Commission, particularly as it would seem that the Commission did not formally publish what role it had played in trying to influence the Government. Only by a degree of investigation and chance did we discover what the Commission's perspective is, which is doubly unhelpful and a good reason why amendment 37 should be accepted in due course.
Mr. Harper:
The hon. Gentleman makes a good point. The European Commission openly said that it had written a reasoned opinion and sent it to the United Kingdom. However, I understand-I am sure that the Solicitor-General will correct me if I am wrong-that when various organisations have tried to get hold of a copy, officials from the Government Equalities Office have declined to let them have one on the grounds that such opinions are confidential to the Government. It is helpful that we now have a copy of that reasoned opinion from a source in Brussels, but it is disappointing that it was not released by the Government. It should be
placed in the Library, so that all Members can see it. It would be helpful if the Solicitor-General can let me know when she responds to this debate-or now, if she wants to intervene-why it was felt necessary to keep that secret.
I understand that the reasoned opinion states that the Government have given an undertaking to remedy the alleged defect that the European Commission says is in our existing law, but the Solicitor-General has just confirmed to the House that the law is not being changed at all. I do not see how we can square that circle. The view that the hon. Member for Oxford, West and Abingdon and I share-that the measure has been narrowed-is the right one. We might differ on how welcome that narrowing is, but what he and I have set out, as well as the Government's response to the European Commission, all appear to confirm that. If there has indeed been such a narrowing, as we think there has, we shall support amendment 37, standing in the name of the hon. Member for Stroud, which seeks to extract that definition from the Bill.
Dr. Evan Harris: The hon. Gentleman is absolutely right. The nub of the issue is that the Government cannot have it both ways. They cannot tell the European Commission that they will comply, and thereby avoid infraction proceedings, by narrowing the scope of the measure that they say the Commission judges to be too wide, but at the same time tell us, with the other side of their face, that there is no narrowing at all. They cannot have it both ways. The reasoned opinion makes it clear that the Government have assured the Commission that what we have is the very narrowing that the Commission required.
Mr. Harper: I am grateful to the hon. Gentleman for that. This will obviously take some time and I apologise to the House for that, but it might be helpful for hon. Members to know that paragraph 19 of that reasoned opinion-reasoned opinion No. 226, on EC cases other than failure to notify measures-says:
"The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive."
Assuming that the European Commission has correctly interpreted what it has been told by the British Government, I do not see how that interpretation can be true given what the Solicitor-General has told us-that this definition does not narrow the law. They cannot both be true: either the Government have misinformed the European Commission or the European Commission has been very confused. In that case, the Solicitor-General will be able to tell us and she will either have to get a letter winging its way immediately to the European Commission to put it straight or she will have to admit to the House that the provision does indeed narrow the exemption, which she has insisted today is not the case. In any event, we will listen to her explanation with great interest.
Colleagues may feel that I have done this particular aspect of the provisions to death, so I shall briefly pick up a few points I made in response to the hon. Member for Glasgow, East (John Mason). Members will be pleased to know that I am coming to my final point, as I know others want to enter the debate. I remind them, however, that I did not draft the programme motion.
I have had a number of letters from pastors and priests that have been passed on to me from various Christian organisations. I shall try to give a general sense of them rather than quote from them. The authors do not believe that their leadership role within their Churches falls within the definitions. Let me cite one from Spencer Shaw, the pastor of the Emmanuel Evangelical church in Chippenham. He makes the point that he works more than 50 hours a week and that although some of that time is spent leading corporate worship and teaching biblical doctrine, the larger proportion of his time is spent on other matters of running a church. He spends many hours each week in leadership meetings, working with other Churches, organising events, training staff and volunteers, visiting the sick, and listening to and encouraging people with problems. He also spends many hours in study, personal prayer and preparation. He says all those activities
"are vital to the role of the Christian Minister and must be undertaken by someone whose beliefs, ethos and lifestyle are consistent with those of the church he leads."
He does not feel-I have read his explanation of what his job involves-that he would fall within the terms of the definition in the Bill because he would not "wholly or mainly" spend his time on the two specified activities. If the definition does not even include people who lead worship in their churches, it seems to me that it is a faulty one.
I could add a number of other examples, but I will not try the House's patience by reading them into the record. I am not at all convinced, however, that this definition is sound or that the Solicitor-Genera is giving us a straight answer about whether it changes the law. I hope that she is able to clear that up, as it does not accord with what the Government have told the European Commission. On that note, let me make it clear that Conservative Members will support the hon. Member for Stroud if, as he has indicated, he presses his amendment to a Division.
Mr. Drew: This will be a short speech, as we have already covered much of the ground. I intend to press amendment 37 to the vote. The amendment is straightforward in the sense that it simply removes paragraph 2(8) from schedule 9. What those who feel strongly about this want to see is effectively a return to the status quo. We have just had an argument about whether and why the Government's interpretation is narrow. The simple answer is that even if we argued crucially that ministers as part of organised religion have certain protections-in some cases those protections have been found wanting by the courts under existing legislation-others involved in religion do not. It is absolutely right to protect people when they are going about doing something that in any other walk of life they would feel entirely free to do.
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