Joint Committee on Statutory Instruments Minutes of Evidence

Examination of Witnesses (Questions 20-39)

Tuesday 3 June 2003

Ms Ros McCarthy-Ward, Ms Cathy Rees, Mr Nick Magyar, and Mr David Thorneloe

  Q20  Earl Russell: Yes, I would. I would like to know which words you are relying on.

  Mr Magyar: Article 4.1 says: "Notwithstanding Article 2(1) and 2, Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1", which obviously would include sexual orientation, "shall not constitute discrimination where by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate".

Chairman: May I just ask Lord Lea to come in at this point.

  Q21  Lord Lea of Crondall: Under draft regulation 7(3)(b)(i) a discriminatory requirement may lawfully be applied so as to comply with the doctrines of the religion, regardless of the nature of the employment or the context in which it is carried out. How is this justified by Article 4.1 of the Directive, which requires that a characteristic should be related to the nature of the particular activities concerned or the context in which they are carried out?

  Mr Magyar: Where religious doctrine requires a post to be filled by persons of a particular orientation we believe it will do so because of the nature of the post or the context in which it is carried out. We are not aware of any cases in which religious doctrine requires a post to be filled by persons of a particular orientation, but religions and religious doctrines change over time so we felt it was important to include this. The essential point is that where religious doctrine requires a post to be filled by persons of a particular orientation we believe it will do so because of the nature of the post or the context in which it is carried out, not merely because of discriminatory motives not attributable to the post or the context.

  Q22  Mr Donaldson: Just exploring this point a bit further on where you draw the line. The Bible, which of course is central to Christian churches, teaches that homosexuality is a sinful practice. If a church in London wishes to employ someone to clean its windows, is that a genuine and determining factor in terms of employment to that particular post? If that same church wished to employ a Christian counsellor to counsel, for example, someone who was the victim of sexual abuse, in those circumstances would it be a genuine and determining requirement?

  Mr Magyar: I think with the cleaner of the windows the argument, as I think I have indicated, would be difficult to sustain. I cannot give a categoric answer here, and I am sure you would not expect me to be able to do so, but I would have thought that for that sort of post it would be very difficult to sustain that argument. With different posts there may be the possibility of running the argument. In the other post that you mentioned, it is possible. Again, it is a question of fact ultimately for a court or tribunal. Certainly with the cleaner I think there would be great difficulty in sustaining the argument.

  Q23  Earl Russell: With the cleaner we are in an area of considerable uncertainty, especially since religions may claim to be the supreme judge of what is compatible with their ethos. There could be room for a good deal of litigation here.

  Mr Magyar: I think I would have to accept that I cannot give a categoric assurance to this Committee that an argument will not be run in relation to a cleaner. What we have tried to do with regulation 7(3) is draw the criteria in such a strict way that there will be a number of hurdles for any employer trying to sustain such an argument to actually convince a court or tribunal that to be a cleaner they had to hold a particular orientation and that that was a genuine and determining occupational requirement. As I say, I cannot give a categoric assurance that a case of this nature will not be run, it will not give rise to litigation, but we have tried to draw the criteria in a way that gives a clear indication to courts and tribunals that this is a strict exemption.

Chairman: Thank you very much. Before I call Mr White, can I just say to everybody in the room that I think I can detect a faint electronic signal of some kind emitting a sound from somebody in this room. If anybody has got a beeper or a phone that is not switched off, would they check that it is.

  Q24  Brian White: I am slightly confused because I would have thought that regulation 7(2) would cover everything in Article 4.1 and Article 4.1 of the Directive requires that the discrimination requirement is proportionate and that is the basis of your argument. If you look at regulation 7(3)(b)(ii) it allows the "strongly held" religious convictions of a "significant number" of a religion's followers to be given precedence when determining whether the discriminatory requirement can be applied. Why is it considered that this will always be proportionate?

  Mr Magyar: Because of the way that the provision is structured and the other hurdles that have to be overcome. Even in regulation 7(3)(b)(ii) it is not simply that there are strongly held religious convictions, it is because of the nature of the employment and the context in which it is carried out. Merely having strongly held religious convictions of itself would not be sufficient. The object there is to ensure that where it is merely a prejudice, if you like, on the part of certain followers, that of itself will not be sufficient.

  Q25  Brian White: So "proportionate" refers to the degree of discrimination, not the grounds for it?

  Mr Magyar: We think that the provision taken as a whole is proportionate, that if you can rely on this provision by definition you are squarely within 4.1 and that satisfies the test of proportionality.

  Q26  Brian White: If I am an organisation trying to follow this regulation, how am I to know that I am being proportionate or not?

  Mr Magyar: I think that is a problem that many organisations in many fields experience from one day to the next given the human rights legislation which often requires action to be proportionate. The answer that I would give is here we have actually set out the criteria and if they are met then that is proportionate, so the organisation relying on this does not have any additional hurdle about proportionality. If they are within this provision they have acted in a proportionate and legitimate way. In actual fact, this provision should help on the proportionality angle rather than present an additional problem.

  Q27  Earl Russell: Would it be possible to read (b)(ii) as saying that something is proportionate if it conflicts with the strongly held religious convictions of those concerned?

  Mr Magyar: I do not think you can just say it is proportionate if it conflicts, I think you have to look at the whole provision.

  Q28  Earl Russell: Which parts of the whole provision do you want to look at?

  Mr Magyar: I think we have set out a number of criteria which, if met, show that the application of the requirement is proportionate. I do not think that you can extract from the provision that we have drafted one sentence and say "Oh well, does that mean, if X, that would be proportionate?" I think one has to look at the provision as a whole.

  Q29  Andrew Bennett: Not being a lawyer, can you explain simply for me the difference between 7(2) and 7(3)?

  Mr Magyar: 7(2) is of general application. It applies where ". . . having regard to the nature of the employment or the context in which it is carried out—(a) being of a particular sexual orientation is a genuine and determining occupational requirement; (b) it is proportionate to apply that requirement in the particular case; and (c) either—(i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it . . ." That is a provision of general application. Where 7(3) is distinct is that it only applies where the employment is for purposes of an organised religion. 7(3) is tailored, if you like, to the employment in an organised religion. That is not to say that there might not be cases where there could be some overlap between the two provisions but clearly we have drafted them with a view to one being of general application and one to cover a specific case.

  Q30  Andrew Bennett: How significant do you think the difference between them is?

  Mr Magyar: I think that the religious organisations would tend to rely on 7(3) simply because it is employment "for purposes of an organised religion". I think that the two provisions are covering slightly different situations. 7(3) may be slightly broader but both—

  Q31  Andrew Bennett: Only slightly broader?

  Mr Magyar: I would say so. The criteria are drafted strictly. I do not think that tribunals and courts are going to construe this in a way that some fear, which is that as long as someone turns up and says they are a religion that they can then discriminate in whatever way they feel. 7(3) is strictly drafted, it is slightly broader than 7(2), and both, we would say, are plainly within Article 4.1 but 7(2) is for any employer, 7(3) is confined to organised religions.

  Q32  Andrew Bennett: What about groups within a religion who may have divergent views on the matter? How is that going to be applied?

  Mr Magyar: That would come down to 7(3)(b)(ii) but one would look at the nature of the employment and the context in which it is carried out as to whether those requirements would be necessary "so as to avoid conflicting with the strongly held religious convictions of a significant number of . . ."

  Q33  Andrew Bennett: Of all the members or a significant minority or a significant majority?

  Mr Magyar: A significant number. Again—

  Q34  Andrew Bennett: So are you actually giving a veto to one particular group who might say, "We do not like this particular behaviour," even though the religion as a whole might have reached a different decision?

  Mr Magyar: No, because the employer would still have to show that the requirement was because of the nature of the employment and the context in which it is carried out necessary so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. It would not be for one or two people to say, "We have these strongly held religious views and therefore we are able to rely on 7(3)."

  Q35  Mr Donaldson: Is it not the case that you cannot talk of a religion as a corporate body as an employer because quite often religions and faiths are organised in separate congregations and quite often the congregation is the employer in law, and therefore is it not the case that this is required as you have framed it so that it is clear that you are dealing with the employer in law and that may be an individual congregations, albeit part of a wider religious grouping?

  Mr Magyar: Yes, I think I would accept that that is correct. That is our understanding, if the congregation is the employer in law.

  Q36  Huw Irranca-Davies: Following the decision to insert Regulation 7(3) I understand the Department discussed the scope of the exception with "a small number of representatives from churches", if that is correct, and yet the Department does concede in its memorandum that Regulation 7(3) will have an "important but strictly limited impact on only a small number of persons who are employed for the purposes of an organised religion." My question is very straightforward. Conceding that point—that it is going to have a substantial effect on a small number of persons—why was the scope of that amendment not discussed with that small number of persons?

  Ms McCarthy-Ward: Perhaps I had better take up the case there. We have had an enormous amount of consultation on these Regulations as a whole. We have had three public consultations, and almost 4,000 responses. We have also held informal discussions and been out to talk to people and in various different ways gathered an enormous amount of information about the views of a very wide number of people and organisations, so we were aware of the representations that the gay and lesbian groups have made on this issue. The churches, in relation to the draft Regulations on which we consulted last, pointed out that there was an omission which was causing them difficulty and, after much consideration and discussion with them to work out what the Directive would enable us to do and where the Regulations should cover it, we decided that the Regulation should be changed to take account of that. In making that change we took account of all the views that had been expressed over the whole period of the consultation.

  Mr Magyar: If I could just add, the real reason for the meetings was to find out precisely what the problem was for the churches. It has never been part of the Government's policy to interfere with religious doctrine or the genuinely and strongly held views of religious followers. The purpose of the meetings was to find out precisely what the problems were for the churches so as to enable us to draft a provision that addressed the problem, but I think it would be fair to say that the churches still felt that we had not gone anywhere near far enough in the provision that we drafted. We however felt that this would address the specific problems that they had raised and that is why we were talking to them.

  Q37  Huw Irranca-Davies: Just to probe a little further, whilst it may have been possible to elicit the views of the small number of people that may be affected, what you are clearly saying is it would not have been appropriate anyway within the remit of what you were trying to ascertain for 7(3).

  Mr Magyar: Precisely.

  Ms McCarthy-Ward: I think we felt that we had already obtained the views of the people likely to be affected on the gay and lesbian side, and it was, as Nick said, finding out the precise detail of where the problem lay that we needed to explore.

  Q38  Chris Mole: Can I take it then that the draft Regulations on which you consulted at an earlier stage were viewed as being consistent with Article 4.1 of the EU Directive and that you would therefore feel that the changes made have not in any way affected compliance with that Article?

  Mr Magyar: Yes, the changes we have made have not affected whether or not we are within 4.1., we are still squarely within 4.1.

  Q39  Andrew Bennett: You have all this consultation, you know it is going to be pretty controversial and then you smuggle the Regulations out in photocopied form; why is that?

  Ms Rees: I think I ought to answer that one. I think that reflects how seriously we were taking the consultation responses we had and the great amount of time we spent thinking about it and then getting collective agreement from Ministers. I have seen the word "smuggled" used in a number of newspaper articles as well and I very much regret that suggestion. I have to say to try and manage the risk we sent out copies of the draft Regulations and explanatory memoranda to all the key stakeholders especially those who would have particularly strong views about 7(3) to make sure that they got it on the day we laid the draft regulations before Parliament. But I do regret the delay in the process and I have to say we are pursuing very actively getting the draft regulations made available from HMSO.

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 13 June 2003