Taken before the Joint Committee on Statutory Instruments on Tuesday 3 June 2003
Mr David Tredinnick, in the Chair Brougham and Vaux, L.
Mr Jeffrey M Donaldson Lea of Crondall, L.
Memoranda submitted by Department of Trade and Industry
Examination of Witnesses
Witnesses: MS ROS McCARTHY-WARD, Director, Selected Employment Rights Branch, MS CATHY REES, Assistant Director, Selected Employment Rights Branch, MR NICK MAGYAR, Legal Director, and MR DAVID THORNELOE, Legal Adviser, Department of Trade and Industry, examined.
Q1 Chairman: I would like to welcome you all to this Joint Committee on Statutory Instruments this afternoon. We are a Committee of both Houses of Parliament. We do, on rare occasions, ask for oral evidence, which we have done this afternoon, we have asked witnesses to attend. I am going to make a short opening statement which, for greater accuracy, I will read and then I will ask the witnesses to identify themselves and whether they have any opening statements. After that we will proceed with questions and at the end I shall ask everybody who is not a Member of the Committee to withdraw so we can deliberate on what the witnesses have said to us. We, the Joint Committee, are here this afternoon to consider the two sets of Employment Equality Regulations which are before us. The Committee thinks it is important that it has a full understanding of the powers the Government intends to exercise in making these regulations. We have, therefore, asked departmental officials to appear before us this afternoon to explain some of the aspects of the draft regulations and to elaborate on the memoranda which the Department has supplied in response to our earlier questions, which was obviously in previous sessions. This Committee has a limited remit. It can only report its findings on certain technical aspects of Statutory Instruments to both Houses. It is not for this Committee to consider the policy behind the Instruments before us today, that is a matter for the Government. The matter to be addressed when the Instruments are debated in both Houses is the policy. Here we are this afternoon and we have our witnesses in the room. Before I introduce them I would just like to make it clear that the two clerks of this Committee on my right and left are obviously not Members of the Committee, they are Counsel to the Chairman of Committees of the House of Lords and Speaker's Counsel on my left. Would you like to identify yourselves, please, from left to right as I look at you.
Ms Rees: I am Cathy Rees. I work for the DTI on the religion and belief regulations.
Ms McCarthy-Ward: I am Ros McCarthy-Ward. I am head of the branch that has policy responsibility for the regulations.
Mr Magyar: I am Nick Magyar. I am head of the legal branch with responsibility for drafting the regulations.
Mr Thorneloe: I am David Thorneloe, drafting lawyer working on the regulations.
Q2 Chairman: Thank you very much for introducing yourselves. Do you have any introductory statements you wish to make?
Ms McCarthy-Ward: No, I think we have provided you with memoranda.
Q3 Chairman: We have a list of questions which we think are appropriate and then there may be some more informal questions afterwards. May I start by asking you the following: the words "for the purposes of an organised religion" in regulation 7(3) of the sexual discrimination regulations are taken from section 19 of the Sex Discrimination Act 1975. How are those words commonly understood in that context? Secondly, while you are pondering that question, is it intended that the words "for the purposes of an organised religion", as used in regulation 7(3), should be understood in the same way as they are in section 19 of the Sex Discrimination Act? If you would like me to repeat the question I will gladly do so.
Mr Magyar: No, thank you.
Q4 Chairman: I think you will need to speak up too, this room does not have the best acoustics.
Mr Magyar: As the Committee is aware, the term "organised religion" is not a new one in religion. You are quite right, it is taken from the Sex Discrimination Act, section 19.
Q5 Earl Russell: I am sorry, could you speak up a little, please.
Mr Magyar: Sorry. As the Committee has realised, the term "organised religion" is not a new one in legislation, it is taken from section 19 of the Sex Discrimination Act. We are not aware of any case law on what constitutes an organised religion. In practice it would appear that the term does not appear to have caused any misunderstandings but, as I say, as far as we are aware it has not been the subject of any case law. Whether something is an organised religion ultimately will be a question of fact for the court or tribunal. We do not expect that it would prove a more difficult question than other questions of fact regularly faced by courts. In practice, how the courts are likely to approach this, we anticipate that in general it should be reasonably clear whether or not employment is for purposes of an organised religion. We think that would involve consideration of who or what the employer is and what it does and consideration of the role of the employee and the functions of his or her post. Generally speaking, we would be thinking that an organised religion is something like a church, a mosque, a temple, something of that nature, but it could be wider than that ultimately, it is a question of fact for the court or tribunal.
Q6 Chairman: So the main religions would be covered but it would be a matter for the courts to decide on religions which are not necessarily household names?
Mr Magyar: Yes, I think that is correct.
Chairman: Does any colleague wish to pick up on those points so far? Thank you very much for that. I will ask Mr Donaldson if he would like to ask the next question.
Q7 Mr Donaldson: Referring back to Article 4.1 of the EC Directive, what do you think the terms "genuine and determining" mean in that Article?
Mr Magyar: We think the word "genuine" would carry its natural meaning, so a requirement would be a genuine requirement for a job having regard to the nature or context of the work, not one which would be created at the whim of the employer in order to exclude persons of a particular orientation. We feel the word "determining" denotes that the requirement must be crucial or decisive to the post in question, not merely one of several general requirements.
Q8 Mr Donaldson: Can you explain how discrimination on the basis of regulation 7(3) can be limited to "genuine and determining" occupational requirements?
Mr Magyar: The words "genuine and determining" are implicit, we feel, in the strict criteria laid down in regulation 7(3). They are not spelled out in regulation 7(3) because to do so would effectively require organised religions to overcome the same hurdle twice, but we expanded on the point in more detail in the memorandum that we provided to the Joint Committee on 27 May.
Mr Donaldson: Thank you.
Q9 Andrew Bennett: Can you just give us a couple of practical examples of where discrimination would and would not be involved in that question you have just answered?
Mr Magyar: Do you mean regulation 7(3) of the sexual orientation directions?
Q10 Andrew Bennett: Yes. You have just described it in these terms, can you now put it into a more practical example of how you think one group would be covered by the regulation and another group might be exempt from the regulation?
Mr Magyar: We think that the obvious example of one that would be covered would be clergy or a high ranking official in a church body. We think that an example of a case that would not be within that would be, for example, a nurse in a care home.
Mr Thorneloe: Yes, on the basis that if it were a care home perhaps that had a religious ethos or was run on religious principles that would nevertheless probably not be employment purposes in an organised religion and would not have a sufficiently close relationship to the religion in the nature and context of the work so as to meet the criteria of regulation 7(3).
Q11 Andrew Bennett: You made the comment about a high ranking official, how low down do you come before you are caught or you are not caught?
Mr Magyar: Again, I think that ultimately has to be a question of fact for the tribunal or court considering the matter. It is extremely difficult to try and give examples in the abstract, particularly when one is not aware of the particular organisation, one is simply talking about an hypothetical organisation.
Q12 Andrew Bennett: Surely it should be simple for a member of the general public to read the regulation and to understand the regulation as it might apply to them.
Mr Magyar: We feel that we have drafted it in as clear and as succinct a way as possible and in conformity with the terms of Article 4. At the end of the day I think one has to recognise that Article 4 is in some respects somewhat unclear, that there will be cases that could fall either side of the dividing line and ultimately I do not think one can spell out those cases in legislation, one has to trust to the good sense of the courts and the tribunals that have to consider the matter. Inevitably they would have regard to the Directive in approaching the issue, but at the end of the day we feel that the regulation is as clear as it is possible to be.
Q13 Earl Russell: There are one or two precedents on this which perhaps might be helpful. There are EOC and Employment Tribunal precedents in this country. It has been ruled that a job fitting women's bras is one where being a woman is a genuine and determining occupational requirement, and I think one can understand that well enough. There was also a case where a man was offered a job under the Jobseeker's Act pulling pints in the Cardiff Conservative Club and he refused it on the ground that he was a Labour voter and this was ruled not to be a determining occupational requirement. Where do you draw the line between these two types of case? How does it apply to these regulations?
Mr Magyar: I think it is actually very difficult, as I say, to draw the line, particularly in relation to sexual orientation and religion or belief where I think we are in a slightly different ball game than sex discrimination. I think one simply has to look at the particular facts of any individual case and ultimately, as I say, it will be for the court or tribunal to determine the issue.
Q14 Earl Russell: There are two pieces of wording here that I wanted to ask what parallels there are to. 7(3)(ii)"...so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers..." A lot of things interfere with people's convictions, where else has this allowance been made in equivalent regulations?
Mr Magyar: I am sorry, I missed the last part of that.
Q15 Earl Russell: Where else has an equivalent allowance been made in regulations for something which conflicted with someone's strongly held convictions? Where else has this been held as sufficient ground for exemption?
Mr Magyar: Section 19 of the Sex Discrimination Act has a similar formulation but we are basing our regulations squarely on Article 4.1. The point here is it is not merely so as to avoid conflicting with the strongly held religious convictions of a significant number of followers that is sufficient, it is because of the nature of the employment and the context in which it is carried out. One also needs to have regard to the first criterion where the employment is also for purposes of an organised religion. We are not talking about any employment, we are talking about a specifically narrowly drawn category of employment and even then, because of the nature of the employment and the context in which it is carried out, the requirement is necessary"...so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers..."
Q16 Earl Russell: There we come back again to the question of the exemption for a person pulling pints at the Conservative Club. What is and what is not "for purposes of a religion"? Would pulling pints in a bar be for purposes of a religion or would cleaning its windows be for purposes of a religion?
Mr Magyar: In my view, I think it would be a very difficult argument to sustain that such employment would be for purposes of an organised religion, but even if one were to overcome that particular hurdle, and I think it is a difficult one, it would be difficult to say that the nature of the employment and the context in which it is carried out would make it necessary so as to avoid conflicting with the religious convictions of the followers of the religion. Ultimately, obviously, that is my view on that but it is not to say that that argument will not be run in a court or tribunal but my feeling is it is unlikely to be sustained.
Q17 Earl Russell: Why then is this argument allowed for a religion and not for Cardiff Conservative Club?
Mr Magyar: As I said at the outset, I think that with religious discrimination we are in a slightly different ball game from sex discrimination and also we are talking about the strictly drawn criteria that we have here based on Article 4.1 of the Directive and that gives a different context.
Q18 Earl Russell: Which phrase in 4.1 of the Directive are you relying on there?
Mr Magyar: We are relying on 4.1.
Q19 Earl Russell: Which part of 4.1? I have it in front of me here.
Mr Magyar: It is the whole thing. Would you like me to read it out for the benefit of the Committee?
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 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 religious view 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 (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 is only 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 it have a substantial effect on a small number of persons - why was the scope of that amendment not discussed with those 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 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 could 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. 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. I do regret the process and I have to say we are pursuing very actively getting the draft regulations made available.
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 but I do not think I 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 it yourselves, it 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, so 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 and the particular employment and the context in which it is carried out.
Q44 Huw Irranca-Davies: It is drawn from 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 processes 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 my 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 distinct 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, but I must admit that is possibly the most concrete example I can give of a possible 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 it 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. Regulation 10 is in some ways similar to section 76 of the Race Relations Act, and 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.
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.