WRITTEN EVIDENCE
SUBMITTED BY
THE BRITISH
HUMANIST ASSOCIATION
(LOCO 063)
1. SUMMARY
1.1 We understand that the localism agenda will
lead to public services that are currently provided by the state
being run by voluntary organisations. We are concerned that this
will mean that public services will be run by religious organisations.
1.2 This is a concern because such organisations
have exemptions in equality law which may put service users and
employees at risk of discrimination on grounds of religion or
belief.
1.3 Further concerns about this aspect of the
localism agenda are that services may become "balkanised"
on the grounds of religion or belief which will be both uneconomical
and divisive. Organisations may also use their status as service
providers to proselytise.
1.4 It is the duty of local and central government
to protect the rights of service users and employees not to be
discriminated against on the grounds of religion or belief.
1.5 We therefore propose legislative change to
decrease the risks caused by the localism agenda in this regard.
2. ABOUT THE
BRITISH HUMANIST
ASSOCIATION
2.1 The British Humanist Association (BHA) is
the national charity representing the interests of the large and
growing population of ethically concerned non-religious people
living in the UK. It exists to support and represent people who
seek to live good and responsible lives without religious or superstitious
beliefs. It is committed to human rights and democracy, and has
a long history of active engagement in work for an open and inclusive
society.
2.2 The BHA's policies are informed by its members,
who include eminent authorities in many fields, and by other specialists
and experts who share humanist values and concerns. The BHA itself
is deeply committed to human rights and advocates an open and
inclusive society in which individual freedom of belief and speech
are supported by a policy of disinterested impartiality on the
part of the government and official bodies towards the many groups
within society so long as they conform to the minimum conventions
of the society.
3. INTRODUCTION
3.1 We welcome the opportunity to submit evidence
to the Communities and Local Government Committee Inquiry into
Localism. The BHA has extensive experience in this area and has
been working on related issues for a number of years.
3.2 The relevant legislation, the Decentralisation
and Localism Bill as announced in the Queens's Speech, is not
yet published and no White Paper is planned. However, the government
have announced their plans in part via the Queens Speech, the
document entitled The Coalition: our programme for government
and the Department for Communities and Local Government
Structural Reform Plan.
3.3 One of our largest areas of concern regarding
localism is that of public service reform—and specifically
the contracting out of public services to religious organisations.
3.4 We expect to have further comments once the
Bill has been published and will submit further observations in
due course.
3.5 We are available to submit further evidence,
both written and oral, to the Committee on this or related subjects.
4. BACKGROUND
TO OUR
POSITION
4.1 Our firm position is that state-funded, inclusive
public services should be secular. We advocate for the shared
institutions of society—its laws, governance and public
services—to maintain a careful neutrality on disputed matters
such as religion and belief. Religion may motivate people to public
service, but public services should not be delivered in the name
of religion.
4.2 The BHA has serious concerns that allowing
religious organisations to run publically funded statutory services
could leave service users and employees at risk of discrimination
on the grounds of religion or belief. The government has given
clear indications that the localism agenda will include contracting
services to community organisations.
4.3 For example, the Decentralisation and Localism
Bill announced in the Queen's Speech will "give communities
the right to bid to take over local state-run services."[7]
The exact nature of such services is not clear, but it is likely
that they will include general public services such as healthcare,
prisons, welfare to work, probation and justice services, adult
education and housing. For example, the health section of the
coalitions programme for government states "we are committed
to the continuous improvement of the quality of services to patients,
and to achieving this through much greater involvement of independent
and voluntary providers."[8]
4.4 It is highly likely that some of those providers
will be religious organisations.[9]
The government has also given an indication that they will specifically
support religious groups to be part of the "Big Society"
"unhindered by the barriers many of them currently negotiate."[10]
4.5 We are also aware that religious organisations
may seek to discriminate, even when running a service under contract
to a public authority.[11]
In 2006, in a memorandum to the Joint Committee on Human Rights,
the Salvation Army stated, "Whilst it is appropriate for
the state to be religiously neutral, this is impossible for an
organisation such as The Salvation Army, which delivers its services
as a direct outworking of the Christian faith."
4.6 This shows the clear distinction between
a secular service run by the state and a service run by a religious
organisation. It is our position that the current state of equality
legislation in the UK causes the religious ideology of some organisations
to be incompatible with the provision of secular public services
on behalf of the state.
5. OUR POSITION
5.1 It is therefore our strong position:
¾ that
all public services should be open and accessible to all citizens
and be provided on a non-discriminatory basis;
¾ that
organisations in receipt of public funding to provide public services
should be bound in their provision of those services by the same
legal obligations to avoid discrimination in dealing with their
clients as are public providers of the same services;
¾ that
those organisations should be bound in their provision of those
services by the same legal obligations to avoid discrimination
in their employment practices as apply to public providers of
the same services;
¾ that
those organisations should be bound, as public authorities, in
their provision of those services by the Human Rights Act 1998;
¾ that
such organisations should be required to respect the privacy and
autonomy of their clients.
6. OUR SPECIFIC
CONCERNS
6.1 We consider that discrimination against employees
by religious organisations contracted to run public services is
a real threat. Current law[12]
allows such organisations to put Occupational Requirements on
posts even when that post and the service it is delivering is
part of a public service contract which aims to meet the needs
of all sections of society.
6.2 This will become increasingly problematic
as services are passed from state to local control. If, for example,
a local religious organisation wins a contact to take over a service
that is currently being run by the local authority, public sector
workers who have been transferred with the contract may find their
working conditions or chances of promotion severely affected by
their religion or belief. Discrimination which would be unlawful
for the local authority to undertake would be legal for the new
service deliverer. This is unacceptable.
6.3 Similarly, we are concerned that there is
a real possibility that discrimination against service users because
of their religion or belief will no longer be prevented because
services are being run by organisations which have exemptions[13]
in law. It is quite possible that local state funded services
could become effectively inaccessible to people because of their
religion or belief because the service is being run by a religious
organisation which is restricting services lawfully by using an
exemption.
6.4 During the discussions on the Equality Act
it was recognised that similar exemptions on grounds of sexual
orientation should be unlawful if the service was being run under
contract to a public authority as this would be incompatible with
the rights of service users not to be discriminated against. As
far as we are concerned, this same argument must extend to religion
or belief.
6.5 The move to contracting public services to
organisations other than those recognised as public authorities
may also result in reduced rights for service users more generally.
Case law has shown that the definition of "public authority"
under the Human Rights Act 1998 can mean that services contracted
to other organisations may not be covered by the Act.
[14]
This leads to service users having no recourse to law if their
human rights are abused by organisations running services on behalf
of the state.
6.6 Where the service is being run by a religious
organisation, a service user being discriminated against because
of their religion or belief may have no recourse to either the
Equality Act or the Human Rights Act. This lack of legal protection
is unacceptable.
6.7 As well as the risk of discrimination, the
localism agenda may lead to an uneconomic duplication of services.
When talking about the use of exemptions in public services, The
Equality and Human Rights Commission (EHRC) non-statutory guidance
on the Act states that targeted services are, "only allowed
if the public body makes arrangements so that people not of that
religion or belief can receive the same services by another route."[15]
This suggests that the localisation of services may result in
"parallel services" ie a number of similar services
run by different organisations for different religion or belief
groups rather than one secular service accessible to all.
6.8 Such a situation would go against one of
the stated aims of the localism agenda; that of saving public
funds through efficient use of voluntary and community sector
providers. For example, the Total Place initiative aims
to "identify and avoid overlap and duplication between organisations—delivering
a step change in both service improvement and efficiency."[16]
This would not be achieved by contracting different organisations
to supply services for different sections of the community.
6.9 This would also lead to increased competition
within the voluntary and community sector with divisive effects
on the community which have implications for social cohesion and
equality. Shared local communities who are fully empowered to
make decisions about their lives cannot become a reality if they
are split along religious lines via service delivery.
6.10 Finally, we believe there to be a real risk
that service users and employees may find themselves at risk of
proselytisation. Religious activities—staff inviting clients
to take part in religious worship or praying for clients while
providing services—are at best an unwelcome intrusion for
many people, at worst enough to deter them from taking up the
service at all. Many religious organisations who may become service
providers on behalf of the state have the duty to proselytise
written into their mission statement.
6.11 For example, the mission of the Salvation
Army is "to proclaim his gospel, to persuade people of all
ages to become his disciples and to engage in a programme of practical
concern for the needs of humanity."[17]
Such an agenda is not compatible with state provision of public
services, particularly where service users and employees do not
have recourse to legal action if they feel that they have suffered
discrimination.
6.12 Further, this problem has been recognised
by religious groups themselves as being unacceptable with Faithworks
(an umbrella group for religious organisations) feeling the need
to write a charter asking organisations to sign up to certain
principles including, "Never imposing our Christian faith
or belief on others."[18]
The BHA believes that organisations who wish to proselytise should
not be given the opportunity to do so via public services as this
would amount to a misuse of public funds and seriously question
the legitimacy and accountability of public services.
7. ROLE OF
LOCAL GOVERNMENT
AND CENTRAL
GOVERNMENT IN
LOCALISM
7.1 From the perspective of the concerns listed
above, the role of both local and central government in public
service provision when provision has been contracted to third
party organisations is one of regulator.
7.2 Both local authorities and central government
have responsibilities as public authorities to protect citizens
from discrimination and to uphold citizen rights, as outlined
in the Human Rights Act 1998 and the Equality Act 2010. From April
2011, they will have additional duties to demonstrate that they
are taking action on specific equality issues under the Public
Sector Equality Duty.
7.3 Localism must not be allowed to become the
mechanism by which public authorities "contract out"
these responsibilities, thus diluting the protection of citizens'
rights. The responsibility to regulate public service providers,
increase equality of access to services and educate providers
about equalities issues must therefore rest with the public authorities.
This will help to maintain both equal and good quality services.
8. EXAMPLES—UK
AND OVERSEAS
8.1 The inquiry specifically asked for examples
of localisation from the UK or overseas. The UK is yet to see
large scale contracting with religious organisations to the extent
that other countries have making examples from the UK difficult
to find. However, both the USA and Australia have undertaken national
programmes which include "faith-based" welfare provision.
It is useful to look at the situation in both countries.
8.2 Many of Australia's public and welfare services
are provided through religious, particularly Christian, organisations.
For example, the Catholic Church is the biggest operator in health
and education.[19]
The employment service has been outsourced to the not-for-profit
sector and the Salvation Army runs Employment Plus, the country's
biggest employment service, offering welfare-to-work services
for the unemployed.
8.3 Other Christian organisations, such as Mission
Australia, also have a very large involvement in welfare and employment
services. Like religious organisations in the UK, they are allowed
to discriminate in their employment practices. For example, all
Mission Australia employees must read, and agree with, their Christian
values statement and demonstrate that they are able to work in
an organisation with an overriding Christian ethos.
8.4 Because of these legislative exemptions,
religious organisations can and do discriminate on grounds of
religion or belief in their employment practices when running
publically funded services. This leads to reduced employment opportunities
for many people on the grounds of their religion or belief.
8.5 In the US, Under the Civil Rights Act 1964,
religious organisations have a special exemption, allowing them
to discriminate in their hiring on the grounds of religion, so
that they may "maintain their religious liberty and identity".
Further, religious organisations providing public services are
allowed to prescribe the lifestyle of their employees outside
of the work environment, such as abstaining from alcohol.[20]
8.6 Although it is illegal for religious organisations
in receipt of Federal funds to discriminate against service users
on religious grounds, or make participation in a religious activity
a condition of receiving a public service, it is not clear that
these stipulations are closely monitored in all areas.
8.7 The policy outcome is that many public or
"social" services in the US are becoming more openly
religious. Religious organisations providing such services do
not have to remove religious symbols, art and icons, or forgo
religious ceremonies such as collective praying before meals.
Therefore, it is left to the service user to have to refuse to
take part in religious activities, which is a very troubling (and
presumably difficult to monitor) situation, especially for more
vulnerable individuals.
8.8 In the UK, there are no provisions in contracts
or legislation to prevent money from the state being "creamed
off" and used for religious purposes. If there are problems
of accountability in the US where there is clear legislation against
such activity, it does not bode well for the UK.
8.9 Moreover, it is not just a theoretical worry
that public services might be provided in religious settings or
in ways that encourage participation in religious activities.
At a Department for Work and Pensions event on 7 June 2007 for
faith-based organisations, the officials were clear that once
welfare-to-work and other services had been contracted out, they
did not know how the money was spent. Nor could the officials
say how many religious organisations had contracts or subcontracts,
or how many services were actually provided in churches or other
places of worship.
9. RECOMMENDATIONS
9.1 To mitigate the risks identified by the localism
agenda, the BHA recommends the following:
¾ We recommend
that the Equality Act be amended to prevent the use of Occupational
Requirements on grounds of religion or belief if the purpose of
the employment is to deliver services under contract to a public
authority.
¾ We recommend
that the Equality Act be amended to prevent religious organisations
from discriminating on the grounds of religion or belief in service
provision when under contract to a public authority.
¾ We recommend
that the Human Rights Act be amended to make it clear that those
contracted to run services on behalf of a public authority are
recognised as a public authority for the purposes of the Act.
¾ We recommend
that mechanisms are put in place to allow and support Local Authorities
to monitor the satisfaction of service users with service delivery
in order to make Local Authorities accountable.
¾ In the
absence of legislative change, we recommend that all contracts
with third party organisations contain a stipulation that they
must not use exemptions in equality law when under contract to
a Local Authority.
¾ We recommend
that all contracts with third party organisations contain a stipulation
that they must not use public money to further any religion or
belief by proselytising to service users or employees.
October 2010
7 Localism Bill- Queen's speech, May 2010. Back
8 The
Coalition: Our Programme for Government,
May 2010. Back
9
As defined by the Equality Act 2010. Back
10
Greg Clark, Minister for Decentralisation, speaking at a discussion
hosted by the Archbishop of Canterbury, July 2010. Back
11
As defined by the Human Rights Act 1998. Back
12
Equality Act 2010 Schedule 9, Part 1 Paragraph 3. Back
13
Equality Act 2010 Schedule 23, Paragraph 2. Back
14
please see the 2007 Joint Committee on Human Rights on The
Meaning of Public Authority under the Human Rights Act available
from http://tinyurl.com/2asueg Back
15
EHRC non-statutory guidance on the Equality Act, Your rights
to equality from voluntary and community sector organisations
(including charities and religion or belief organisations),pg22. Back
16
Total Place website, http://www.localleadership.gov.uk/totalplace/ Back
17
What does The Salvation Army do?, Salvation Army Website-www.salvationarmy.org.uk Back
18
The Faithworks Charter, http://www.faithworks.info/Standard.asp?id=7432 Back
19
Ferguson, A., (2005) "Not-for-profit organisations are
a big part of the economy, yet they are virtually unaccountable"
Business Review Weekly, 27 (11). Back
20
Cnaan, R. (1999) The Newer Deal. Social Work and Religion in
Partnership. New York: Columbia University Press. Back
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