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Baroness Turner of Camden: My Lords, I believe that the regulations are intended to put into effect the agreed EU directive banning discrimination in employment on several grounds, including religion or belief and sexual orientation. I have in the past attempted to introduce Private Member's Bills aimed at outlawing discrimination in employment relating to sexual orientation but, for various reasons, those have not succeeded. With these regulations, it seemed that we were in the process of correcting what many of us saw as a continuing injustice. However, I have been lobbied by my own union, Amicus, because it feels that the exemptions proposed could make things worse for gay and lesbian people in religious organisations. As I understand it, there are major exclusions which would exclude faith organisations from having to comply. Would this mean that someone who is not a practising member of a given faith could be rejected for a job? Could a lesbian or gay employee be discriminated against in the event of co-religionists taking exception to his or her continued employment, simply because it offended their religious susceptibilities? Surely that would not be acceptable. I cannot believe that that was the Government's intention.

Further, can employers deny a same-sex partner access to a benefit such as a survivor's benefit in an occupational pension scheme if they specify that this benefit is restricted to married partners only? We have already debated this injustice in the House. There have been some really awful cases in which one partner to a long-term relationship dies, and the other does not benefit from a survivor's pension. The surviving partner also risks losing the home in which they lived, because inheritance tax, which would not apply to a married couple, must be paid. I had hoped that these regulations would put right some of these injustices, but this does not appear to be the case.

I received briefing from several organisations other than my own union. The Law Society says:

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    homosexuals in any capacity whatever, without reference to the nature of the job. This is hard to reconcile with the purpose of the Directive".

The Joint Committee on Statutory Instruments—the text of whose report has been explained to us in some detail this evening by the noble Lord, Lord Lester—clearly believes that Regulation 7(3) breaches the European Directive.

I support the Motion of the noble Lord, Lord Lester, and I hope that in the light of this debate, the Government will feel inclined to accept what he has said. We cannot leave interpretation to tribunals. Regulations must be clear.

8.30 p.m.

Lord Pilkington of Oxenford: My Lords, there is a fundamental problem. There are human rights, and there are corporate rights. Everyone has supported the idea that faith communities can choose the people they employ. In Hitler's Germany, he destroyed faith communities, and the state decided who they could employ. It is a fundamental tenet of modern democracy that the communities within the state, be they trade unions or Churches, can decide whom to admit. The state does not decide that. My Lords, you may disagree with them; you may find them a narrow, funny lot—but it is their right. The noble Baroness sat on the European committee, as I did, together with many European Union members. England is not alone in this. A lot of other people have said that they are not prepared to accept that a faith community should be dictated to by the state—by people who have no commitment to their religion. I do not know what the religion of the noble Lord, Lord Lester, is, but I do not think that it is mine.

It is crucial that we allow derogation in this matter. It is being allowed in Germany, Ireland and a lot of other countries. Why should we not do it? People do not have to be cleaners in the Anglican church or the Jewish synagogue. You may think that they are bizarre or from the Planet Zor, but they are entitled. If we do not watch out, we will stray into the secularisation seen in France in the late 19th century, when the state started to dictate to the Church what it could do. They could not have monks or things like that.

Therefore, it is terribly important that the Government stand firm on this issue, together with the governments of a number of European Union countries. I do not have the advantage of the research team of the noble Lord, Lord Lester, so I cannot furnish my argument with quotes, but corporations within the state have a fundamental right to their own identity and we must support that.

The Lord Bishop of Blackburn: My Lords, I thank the Government and the noble Lord, Lord Sainsbury, for tabling the regulations and the noble Lord, Lord Lester, for his untiring work on behalf of human rights. The Church of England, in common with many other Churches and faith communities in our country, strongly supports the creation of a legal framework to safeguard basic rights and to promote dignity, equality

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and respect for all members of society. The law cannot by itself change attitudes, but as we have seen in the past with legislation against race and gender discrimination, it can helpfully set the boundaries for acceptable behaviour.

It is an undoubted anomaly that discrimination against Jews and Sikhs has up to now been unlawful because they are ethnic groups as well as a religious community, whereas discrimination against Muslims, Hindus or Christians has not been. It is also wrong that prejudiced views about sexual orientation have been able to deny people employment. The two sets of regulations before us tonight address those problems and I welcome them.

They both, inevitably, raise particular issues for faith communities in their own internal affairs. That is not a code for saying that we seek special treatment. It is simply an echo of the assertion of paragraph 24 of the preamble of the European directive in relation to the status of Churches, religious associations and communities. That paragraph continues:

    "With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity".

To put it more simply, the directive recognises that Churches and faith communities need to maintain their character and identity and sometimes to be able to set requirements which should not arise in the case of a secular employer. In respect of the religious discrimination regulations, that much is surely common ground. Religious organisations self-evidently need to be able to safeguard their identity and ethos without the fear of constant litigation which is such a feature of our modern society. Where, for example, being a Christian, a Muslim or a Mormon is a genuine occupational requirement, the regulations now permit what in other circumstances would constitute unlawful discrimination.

In relation to sexual orientation, the arguments, unsurprisingly, become more contentious. There has been a good deal of misrepresentation in the press about the position of a wide range of faith communities, to the extent of it suggesting that we are keen to dismiss gay clergy and staff. Perhaps I may briefly explain why the original draft regulations published last October caused much concern and why we believe that the new regulations are better and more compatible with the directive. It can be expressed very simply. Churches and faith communities need to retain a broad measure of freedom to determine their own requirements in relation to the sexual conduct—not orientation—of those who wish to serve or represent them. What those requirements should be is already a matter of lively debate in many faith communities as we ponder how to respond to the rapid changes in attitudes and ethics that our society has witnessed in recent decades. But that debate is surely something which the Church of England, the Roman Catholic Church, the black majority churches, the Muslims and the very many other faith communities in our diverse society must each be allowed to have in their own way. I urge the House to recognise that there are genuine

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issues of religious liberty here. If that is accepted the question is how best to safeguard that liberty in the way the noble Lord, Lord Pilkington, has just described, while providing proper protection against the discrimination which gay and lesbian people have had to endure.

A difficulty immediately arises as a result of the varying ways in which sexual orientation can be used. As regards the Church of England—and I believe that this will be true for many of the Christian denominations and other faiths—there are no circumstances in which we would wish to be able to discriminate against people on the grounds of their orientation as such. I feel like repeating that.

We do not have posts or orders where there is a requirement to be heterosexual, or indeed homosexual. But we do have some posts and orders where, irrespective of sexual orientation, be it heterosexual or homosexual, the requirement remains for marriage or abstinence. Our difficulty is that under the regulations that sort of requirement would be open to challenge as unlawful discrimination if it were not for Regulation 7(3). The tribunals are unlikely to recognise a clear distinction between orientation and behaviour manifesting orientation. That is the difficulty.

Regulation 7(2) by itself does not give the protection we need because it applies only where being of a particular orientation is an occupational requirement. All of our posts in the Church of England are open to people of any orientation provided that they are prepared to observe the disciplines of the Church where that is required. We have no intention of discriminating against anyone simply because of their sexual orientation.

It was because of the inadequacy, as it was perceived, of Regulation 7(2) that the Archbishops Council of the Church of England, together with many other faith groups, expressed such concern at the earlier draft regulations. We welcome the way in which the Government have listened and responded. It is not that, as a Member of another place said, Downing Street caved in to the prejudices of extreme religious organisations. I doubt even the most unfriendly critic of the Church of England could level that description against it—an extreme religious organisation.

Finally and briefly I say a word about the doubt raised by the Joint Committee on Statutory Instruments to which the noble Lord, Lord Lester, has referred as regards the lawfulness of Regulation 7(3) under the directive. Ultimately, that is a matter for the courts who would no doubt have to struggle to reconcile some of the internal inconsistencies within the directive. On the basis of advice from our standing counsel, Sir Anthony Hammond QC, in our view Regulation 7(3) fully meets the requirements of Article 4(1) of the directive.

In particular the regulation is confined to employment for purposes of an organised religion. It fulfils a legitimate objective—protecting the right to religious freedom—and it is proportionate. It is emphatically not about pandering to prejudices. The

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provision comes into play only where doctrine and strongly held religious convictions are at stake. I cannot believe that that religious doctrine comes into play in the employment of cleaners or librarians—we do not employ many of the latter in the Diocese of Blackburn: they would be a very rare category indeed.

I am sure that the courts and tribunals will be able to see through spurious defences. Not to provide protection for genuine religious convictions would risk the law engaging in a collision course against the consciences of many who take a conservative view, with a small "c", on sexual ethics. That would be a very worrying development and not one that I believe would prove beneficial in the end to these regulations or to the well-being of the diversity, culture and religion of our nation.

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