Joint Committee on Statutory Instruments Minutes of Evidence

Examination of Witnesses (Questions 40-56)

Tuesday 3 June 2003

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

  Q40  Andrew Bennett: When do you expect them to be available on the website?

  Ms Rees: They are available on the DTI website now and we expect them to be on the HMSO website next week.

  Q41  Andrew Bennett: Why has it taken so long?

  Ms Rees: It has taken some time but I do not want to blame HMSO. I have to hold my hand up squarely to take some of the responsibility. I think part of it has been these are hefty documents, you have got them yourselves, each is 40 pages and the amount of proof-reading and detailed work through them is a significant undertaking and we have spent time getting that absolutely spot right because it is important.

  Q42  Andrew Bennett: Is it not important that the documents are available to people that are not involved in pressure groups that have got a particular interest in the matter?

  Ms Rees: We sent out over 50 copies, as I say, on the day. We have got hotline numbers published in all the consultation documents. We have a lot of contacts, people have been phoning us up and I think we have to say the amount of press coverage there has been has also alerted people to this, and we know the organisations we sent them to cascaded them widely. We think that the Regulations are out there for people to actually see and consider.

  Q43  Earl Russell: One follow-up question to Mr Donaldson's important question about the congregation as employer. The answer to that was if fact yes there are circumstances where the congregation is the employer. Does this mean there are circumstances in which it is legal to employ people at the Regent's Park Mosque but it is not legal to employ them at the Finsbury Park Mosque?

  Mr Magyar: Well, I suppose if the nature and context of the work differs at the two mosques, the answer is yes. Ultimately, again, the matter would have to be adjudicated upon by a court or tribunal and it would be dependent upon the particular facts. I cannot answer in the abstract very easily. I think it will turn on the nature of the particular employment and the context in which it is carried out.

  Q44  Huw Irranca-Davies: It is best to draw from my personal experience to follow up the very good question that was put just then. In my Church the Pope would be deemed to be setting the gold standard, passed down through his various representatives here, the diocese would be the employer, the parish and individuals within that parish might have a wholly different view. Who is the determinant, who is the arbiter of what are the genuine needs of discrimination and so on, at what level?

  Mr Magyar: The diocese is the employer so I think it would be the employer who would be the organisation seeking to rely on the provisions, and therefore the answer is the diocese.

  Q45  Huw Irranca-Davies: So in respect of an earlier contribution which referred to Regulation 7(3)(b)(ii) and the strongly held religious convictions of a significant number of a religion's followers to be given precedence when determining whether a discriminatory requirement would be applied; is that a significant proportion within that diocese or are they getting lost in the legalese here?

  Mr Magyar: I think that a significant number in the diocese could well be a significant number of the religion's followers.

Chairman: I think we probably have one question left now you will be relieved to hear. Mr White?

  Q46  Brian White: I am still confused as to why 7(2) does not cover everything you have been talking about because if you look at the notes on the Regulations you suggest that "genuine" and "proportionate" is the same and can be substituted by the "genuine, legitimate and justified" that is in the Directive. I do not understand, maybe it is just me being stupid, why broadening that out adds to what you are trying to achieve. Is that not what is causing a lot of concern?

  Mr Magyar: I think that 7(2), as I have indicated, is the general provision for any employer.

  Q47  Brian White: I understand that.

  Mr Magyar: Obviously 7(3) is aimed at where the employment is for purposes of an organised religion. Obviously copying out the Directive's wording would be one of the permissible ways of implementing the Directive but whether or not to do that it is important to bear in mind how the words are going to be interpreted by the courts and tribunals as a matter of English law, so with the wording in regulation 7(2) we feel that a very clear signal has been given to the courts that this is a very restrictive exception. Whilst regulation 7(3) is also a restrictive exception and squarely within 4.1, the difference in wording to that used in 7(2) we feel gives a clear signal to the courts that the two provisions are potentially intended to cover different situations. Nevertheless, we feel both are squarely within Article 4.1 and I would accept there may be some overlap between the two and it is possible that a religious organisation may decide to rely on 7(2) rather than 7(3). I think it would depend on the particular facts of the case.

  Q48  Brian White: You would accept that the "proportionate" is the same as "genuine, legitimate and justified"?

  Mr Magyar: I think with 7(3) the provision taken as a whole is consistent with Article 4.1 and it is pursuing a legitimate aim and is a proportionate way of pursuing that aim in the Directive.

  Q49  Brian White: Is it genuine, legitimate and justified?

  Mr Magyar: I think it is, yes.

  Q50  Chairman: For the sake of clarification so that we are absolutely clear, may I ask you for an example of something that is covered by "related to sexual orientation" in 7(3) which is not caught by "being of a particular sexual orientation" in 7(2)?

  Mr Magyar: I think the starting point is Article 4.1 which refers to a difference of treatment based on a characteristic related to a person's sexual orientation. If something is a characteristic of a person's orientation, it is typical or distinctive of that orientation. A characteristic of a person who is gay is his or her attraction to persons of the same sex, so a requirement related to those characteristics would be a requirement related to sexual orientation within the meaning of Regulation 7(3), but it is difficult to see, I would accept, what else could constitute a difference of treatment based on a characteristic relating to a person's sexual orientation other than the requirement related to sexual orientation that I have indicated.

  Q51  Andrew Bennett: So 7(3) is not necessary, is it?

  Mr Magyar: A characteristic feature of a person who is gay could be his or her propensity to form sexual relations with persons of the same sex, so a requirement that a person not enter into sexual relations with a person or persons of the same sex would be, in our view, a requirement related to sexual orientation. It would constitute a difference of treatment based on a characteristic relating to a person's sexual orientation within the meaning of Article 4.1. That is possibly the most concrete example I can give of the distinction that I think exists between 7(2) and 7(3).

  Q52  Mr Donaldson: Just a couple of questions finally. Is it true that under the present law a church or faith-based charity can dismiss or refuse to employ a person for sexual immorality of any kind and the law has nothing to say about that?

  Mr Magyar: If the person is an employee we think it is a question of unfair dismissal but I cannot give a definite answer to your question, it is outside my direct knowledge.

  Ms McCarthy-Ward: Perhaps I can just add a little. The normal unfair dismissal provisions of employment law will ensure that an employer has to act reasonably in dismissing somebody for that reason. If the individual had, for example, brought the religion into disrepute and had been in the sort of leadership role where that was very significant, it may well be reasonable for an employer to treat that as a reason for dismissal but he will have to act reasonably in doing so and these Regulations will not change that position.

  Q53  Mr Donaldson: Is it true there are broad exceptions for political officers from the sexual orientation Regulation and, if so, how are these exceptions justified in terms of the Directive?

  Ms McCarthy-Ward: Perhaps I could start by saying that it is a scope question for both of the Regulations which cover some office holders and not others, and I think our clear view is that the Directive does not cover political office holders. I will pass over to Nick to elaborate.

  Mr Magyar: I think it is Regulation 10 that is dealt with in the memorandum that we have submitted. [1]Regulation 10 is in some ways similar to section 76 of the Race Relations Act in its application to appointments made or recommended by a Minister or government department. It also goes further in that it applies to any other appointment to an office or post provided the work is paid and subject to the direction of another person as to when and where he performs his functions. Regulation 10 does not apply to elected posts or to appointments to political offices, ministerial posts or posts held by local councillors within a local council. [2]

  Q54  Mr Donaldson: Finally, on paragraph 24 to the preamble to the Directive, is it true that that paragraph specifically encourages Member States to provide religious exceptions?

  Mr Magyar: I think it would be more accurate to say that it recognises the particular position in society of religious organisations.

  Q55  Mr Donaldson: Has that influenced you in terms of the framing of the legislation?

  Mr Magyar: Obviously that is one of the matters to which we have regard in drafting the regulations, yes.

Mr Donaldson: Thank you.

  Q56  Earl Russell: Just a footnote, paragraph 4 does again say a "legitimate and justified occupation or requirement" and paragraph 2 which introduces it says "in very limited circumstances".

  Mr Magyar: We have had regard to those recitals and we feel that what we have drafted properly reflects the terms of Article 4 and also the recitals.

Chairman: I think that probably draws this session to a close. Before I close it formally and thank the witnesses, may I just say that when I call the Committee to order I would ask the witnesses to leave first and then members of the public because we will then go into private session. On behalf of the Committee, thank you very much for coming to the Committee today, it has been most informative, we are most grateful. Thank you very much.

1   Note by witness: In annex B of the Explanatory Memorandum (not printed). Back

2   Note by witness: Because they are outside the scope of the Directive. Back

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