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Baroness Walmsley: My Lords, as the Minister rightly said, these technical amendments result from a most uncharacteristic and small mistake by her predecessor, the noble and learned Lord the Lord Chancellor. Because of the reassurances that he gave me on that occasion about the way in which those affected by the amendments would be treated, I am very happy to accept the government amendments.
On Question, amendment agreed to.
[Amendments Nos. 99 to 101 not moved.]
Baroness Scotland of Asthal moved Amendment No. 102:
- Page 82, line 44, leave out "17" and insert "18"
On Question, amendment agreed to.
Baroness Scotland of Asthal: My Lords, I beg to move that this Bill do now pass.
Moved, That the Bill do now pass.—(Baroness Scotland of Asthal.)
On Question, Bill passed, and sent to the Commons.
Employment Equality (Sexual Orientation) Regulations 2003
8.9 p.m.
Lord Lester of Herne Hill rose to move, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.
The noble Lord said: My Lords, the Motion raises an issue of law. The Government seek parliamentary approval of the draft regulations to give effect to the obligations imposed on the United Kingdom by the EC Framework Directive 2000/78/EC. Because the Government have chosen to proceed by way of subordinate rather than primary legislation, the power to make those regulations is conferred by Section 2(2) of the European Communities Act 1972. That is a power to transpose the directive faithfully into our domestic law. If the regulations fail to do so because they would allow an employer to discriminate on grounds of sexual orientation in circumstances not permitted by the directive, they are beyond the powers conferred by Parliament in Section 2(2) and are unlawful.
It is Parliament's duty as national lawmaker to legislate in accordance with Section 2(2) of the 1972 Act and the directive. It is the Government's duty to introduce legislation that they consider to be fully compatible with Section 2(2) and the directive.
The legal advice given the Government is confidential. However, Parliament has the great benefit of an independent scrutiny committee—the Joint Select Committee on Statutory Instruments—one of whose main tasks is to draw to the special attention of each House its opinion that there appears to be a doubt whether delegated legislation for which parliamentary approval is being sought is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made. Before doing so, the committee gives the Government the opportunity to explain their position. The committee receives not only expert advice but the most expert legal advice of senior counsel. The committee is a vital safeguard and the executive and legislative arms of government would be wise to heed the committee's advice.
Speaking for myself, I would not have pursued this Motion if the committee had been satisfied that the draft regulations were intra vires. However, last Friday, the committee determined that the special attention of both Houses should be drawn to them on a number of grounds. The committee's main concerns are with Regulation 7(3), which is the subject of my Motion. Before I address those concerns and explain why the House should give effect to them by supporting the Motion, it may be helpful to set the context.
Article 4(1) of the EC Framework Directive allows in very limited circumstances that a difference of treatment may be justified when a characteristic related to sexual orientation constitutes a,
- "genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate".
In practice that means that an employer who wishes to impose a requirement relating to sexuality—for example, that a person working with lesbian women should be a lesbian, or that a person working with gay men should be gay—must demonstrate that being lesbian or gay is essential for the kind of work which is to be undertaken; that there are good reasons for imposing the requirement; and that the requirement is an appropriate one to apply given those reasons. The requirements apply to applicants for employment as well as to existing employees. The burden of proof lies with the employer.
Regulation 7 deals with the genuine occupational requirement exception, though it has a very strange heading. I have asked the Minister whether he can explain the heading because the whole of the vice of Regulation 7(3) may be explained by the use of the word "etc". The heading refers to, "genuine occupational requirements etc". I would like to know what is meant by "etc" because all that Regulation 7 is supposed to be dealing with is genuine occupational requirements. It would be helpful to know what that short Latin phrase means.
Regulation 7(1) sets out the circumstances in which the anti-discrimination provisions set out in Regulation 6 do not apply; and Regulation 7(2) sets out, with some minor variations, the genuinely occupational requirement exception. The problem lies not with the GOR exception itself in Regulation 7(2), although it is very wide. The problem arises in the approach taken in the context of religious organisations in the further exception that has been added in Regulation 7(3). It is with this that the Joint Committee has been particularly concerned.
Regulation 7(3) concerns employment for the purposes of an organised religion. It does not have a genuine occupational requirement provision. Instead it creates a broader exception which allows the employer to impose a requirement relating to a person's sexuality either in order to comply with the doctrines of the religion, or because of the nature of the employment and its context, to avoid conflicting with what are described as the,
- "strongly held convictions of a significant number of the religion's followers".
At paragraph 1.17 of its report, the committee concluded that there is doubt about the compatibility of Regulation 7(3) with the directive. The committee reported that there is therefore a doubt as to whether Regulation 7(3) is intra vires, in other words, that there is any power in Parliament to enact it. In paragraph 1.15 it explains its reasoning in this way. The committee stated:
- "Against this background, the committee is not persuaded that the only acts permitted by Regulation 7(3) are those permitted by Article 4.1 of the Directive. Organised religions vary considerably in their structure; the identity of the employer will vary according to the structure of the religion. It seems to the committee wholly within the bounds of possibility that, for example, an employer considering employing a custodian who would, as part of his or her duties, have care of religious artefacts might determine not to employ a worker solely on a ground related to his or her sexual orientation in order to avoid conflicting with the strongly held religious beliefs of a significant number of the religion's followers. Even if those beliefs were held only by a minority of the religion's followers, and by those located at only one of the several places where the post holder might be required to work, the discrimination would seem to the committee apparently to be allowed by Regulation 7(3)".
- "Yet it is open to question whether either the intention or effect of Article 4.1 [of the Directive] is to allow the personal beliefs, (even of a majority within an organisation) to determine the position, on the basis that they are part of the context in which the work is to be carried out and, in the view of the employer the factor is decisive. Even if a characteristic of the worker could be said to be a 'genuine and determining occupational requirement' in these circumstances there seems to the committee to be a doubt as to whether the requirement is proportionate as the Directive requires".
The Select Committee explained that Regulation 7(3)—I now refer to paragraph 1.11 of its report—may,
- "permit difference of treatment based on characteristics relating to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate".
- "might allow the employer to impose a discriminatory requirement on an employee or prospective employee whose functions or proposed functions did not promote the core activities of the organised religion concerned".
It is, as the Joint Committee explains, important that Article 4 of the directive be construed strictly, and that the regulations do not provide for exceptions
which only a very broad interpretation would permit. It is surely wrong as a matter of principle and, as the Joint Committee explains, of dubious legality, that a person in an administrative or ancillary role within a religious organisation should be excluded from employment because they do, or do not, have a particular sexual orientation. To require a person applying for the position of a church cleaner to be heterosexual when that has absolutely nothing to do with whether he or she can wield a mop and bucket not only flies in the face of reason, but is contrary to the express terms of the directive. It is not just cleaners but librarians and a wide variety of others who will be affected—in both paid and unpaid, voluntary work.The committee went on at paragraph 1.20 of the report to conclude that the position of those affected by Regulation 7(2) and (3) is uncertain. It is not only the possibility that the regulations are ultra vires which should concern this House but that they are unclear on their face. That is a proposition which I should have thought would appeal to all sides of the House—law should be certain both on its face and in its effect. Regulation 7(3) is neither. It is unclear which employers will be able to take advantage of the exemption—churches certainly, religiously inspired hospices, possibly—and which employees will be subject to it—ministers of religion certainly, church cleaners, possibly. This is a profoundly unsatisfactory state of affairs which will lead to expensive and distressing litigation—litigation which will be particularly distressing as it will inevitably involve a public analysis of the very private business of a person's sexuality.
The Government may argue—I hope that they do not—that the lack of clarity in the regulations could be remedied by departmental guidance. That would be highly unsatisfactory. Not only would it be an implicit admission that the regulations are not themselves sufficiently clear—which they should be—but such guidance would not be binding on courts and tribunals. It would in fact be contrary to the principle of legal certainty.
My final substantive reason for pursuing the Motion is also one to which the Joint Committee has drawn the attention of this House in paragraph 1.25 of its report. The committee considered that, in the light of Regulation 7(3), the department would have been prudent to undertake further consultation with representatives of persons likely to be adversely affected by Regulation 7(3) before the regulations were laid before Parliament.
When the original version of the regulations was published for consultation purposes in October 2002, there was no Regulation 7(3). It is reasonable to presume, therefore, that the drafters of the regulations considered that the much narrower Regulation 7(2) provided the only legitimate form of exception. Regulation 7(3) appeared only after the consultation and was included expressly to meet the concerns of those who argued that the regulations should not seek to meddle with matters of religious doctrine. There appears to have been no attempt to consult further with those who will be adversely affected by the
inclusion of Regulation 7(3) even though, as officials who gave evidence to the Joint Committee admitted, there would be such people.I have asked the Minister to deal in his reply with a Question that I tabled for Written Answer asking which of the organisations that made the representations about the draft regulations supported the amendment to Regulation 7 to include the obnoxious Regulation 7(3). The default in consultation is even more regrettable when, as I have indicated and as the Joint Committee has explained, that regulation is unclear in its terms and effect.
Those of us who had strong doubts about the validity of the exception in Regulation 7(3), because of its vagueness and over-breadth, were not at all surprised by the unanimous conclusions of the Joint Committee. We hoped and expected that the Government would reconsider and lay fresh draft regulations before Parliament that followed their original version, on which there was extensive public consultation. We are dismayed that the Government have not done so.
Unless we are able to persuade the Government in this debate, what will be the practical consequences? I shall deal with them briefly. The regulations will become law. They will bear no brand of illegality on their forehead. Unless and until legal proceedings are brought to establish the cause of invalidity and to have Regulation 7(3) annulled, it will remain effective as a sweepingly broad exemption clause apparently permitting a religious body to refuse to employ not a priest but a cleaner or messenger because of their sexuality. In other words, Regulation 7(3) will encourage unlawful discrimination even though, as I am sure that we shall be told, that is not the Government's intention.
I have no doubt—I stake my professional judgment on it—that the courts would eventually decide that Regulation 7(3) was contrary to the principles of legal certainty and proportionality. Either the regulation will be struck down, or it will be drastically read down. But why on earth is it necessary to have recourse to the costly and protracted procedures of challenge in the courts, when it is so easy in this case for the Government and Parliament to enact legislation that avoids the vices of undue vagueness and over-breadth?
I believe that the answer to the puzzle of why the Government have not moved, in the light of the Joint Committee report, is a mixture of confused thought and political obstinacy. The Government and—I am sorry to have to say it—especially the Prime Minister and his advisers were persuaded at the end of the consultation by some religious bodies, including some even in the Church of England, I regret to say, to widen Regulation 7(3) even though it was both unnecessary and unlawful. It was unnecessary because the original version of Regulation 7 contained sufficiently wide exceptions, and unlawful because it authorised sexual orientation discrimination in circumstances not required by the needs of the particular post or the context in which the jobholder would work.
I very much hope that the Minister, for whom I have the utmost respect and feel sadness that he has to do as he is doing, will be able to tell the House that the Government have decided that their first thoughts are to be preferred to their second. If not, it will be our intention on these Benches to seek the opinion of the House, still hoping to make a law that will not mislead or be an abuse of the powers conferred in the 1972 Act. If we are unable to muster sufficient support against the Government's whipping, especially at this late hour, I predict with the utmost solemnity—one does not lightly do so in public—as a practising lawyer of almost 40 years' standing that the Government will face ultimate defeat and humiliation in the courts after costly and effective litigation.
Moved, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending Regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.—(Lord Lester of Herne Hill.)
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