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Lord Lester of Herne Hill: My Lords, can the right reverend Prelate help me on one matter? Where in Regulation 7(3) are words of limitation which require the principle of proportionality to be applied or require that the discrimination should only be in relation to what is a genuine occupational requirement?
The Lord Bishop of Blackburn: My Lords, an amateur is here in conflict with a lawyer. For me the importance of the matter is to comply with the doctrines of religion and religious convictions. That is the main point for us. I was going on to say before the noble Lord intervened that the present drafting would not have been exactly our choice. However, it attempts to strike a fair balance between the rights of individuals and the freedom of faith communities to apply their own beliefs and convictions in relation to those who serve and represent them .
The Motion is to withdraw the first of the two regulations that we are considering this evening. The regulations stem from when the Government decided to sign up to Article 13 of the Treaty of Amsterdam in 1997. For the first time that gave the EU power to legislate in the area of religious and sexual orientation discrimination. Prior to that it could not happen. The previous Conservative government consistently vetoed that. Giving power to the EU to dictate national Government policy in such a sensitive area was always bound to be a minefield. It has proved to be so. One of the first acts of the Labour Government in 1997 was to sign up to Article 13. Three years later,
Under pressure from religious groups at home, and led by the Irish, the Government were able to obtain concessions in the directive to protect religion. Those concessions were not as wide-ranging as could have been wished for, but they went some way towards recognising the different considerations that apply to religious employers.
We now have these regulations that are intended to implement the directive. Given that the Government have helped to obtain the concessions for religious groups, it is disappointing that they have not made the religious exemptions as clear and as firm as they might have. As with all badly drafted laws, as the noble Lord, Lord Lester, has said, it will take much litigation to establish the boundaries of religious protection. That is as true in the religion regulationsthe next matter that we shall debateas it is in the sexual orientation regulations. We would not have started from here if all of that had not happened. However, we are here.
I have listened carefully to the arguments advanced by the noble Lord, Lord Lester of Herne Hill, inviting your Lordships to disapprove of the sexual orientation regulations. I have also had the advantage of studying in advance the letter that he wrote to my noble friend Lord Cope of Berkeley summarising those arguments. I have some sympathy for the strictures about the adequacy, or indeed the suitability, of the regulations. However, these Benches cannot support the rejection of the regulations, which, if rejected, would strip out at least the religious exemptions from the orientation regulations. Despite their shortcomings, to reject the regulations would be akin to throwing the baby out with the bath water. Without them there would be nothing whatever to protect the very people that the regulations are intended to protect.
The nub of the noble Lord's argument is in relation to Regulation 7. Paragraphs (1) and (2) enable an employer, in effect, to discriminate in any case where, as the noble Lord explained, the employee's sexual orientation is a genuine and determining occupational requirement. In his letter to my noble friend, the noble Lord, Lord Lester, conceded that Regulations 7(1) and 7(2) were uncontroversial and squarely within the language of the directive.
However, it is Regulation 7(3) which is objected to by the noble Lord, Lord Lester. That paragraph was not included in the original draft regulations circulated for consultation last October. I wonder at whose behest and on the basis of what representations it was added. Regulation 7(3) permits what in effect amounts to discrimination if the employer is an organised religion and the discrimination as to sexual orientation is to comply with the doctrines of that religion or to avoid conflict with the strongly held beliefs of a significant number of that religion's followers.
The objection by the noble Lord, Lord Lesterto reduce it, if I may, in my words to its simplest termsis that it would permit discrimination not only on the grounds of the sexual orientation of, for example, clergy and teachers but also on the grounds of the sexual orientation of an office clerk or, as he said, the cleaning lady or caretaker who may never come into contact with students or worshippers in the course of their duties.
I am certain that every Member of your Lordships' House would strongly disapprove of what might be described as bigotry and unreasonable, indeed, unreasoning, blind prejudice. However, those of usI include myself in this numberwho wish to protect the rights of various minorities, in this case those of homosexual orientation, must not at the same time overlook the rights of other members of the community. There are those who find homosexuality objectionable. I certainly do not include myself or, indeed, I think, anyone in this House. Although I am a very religious person I certainly would not accept the word "abomination", which is used in Leviticus. I think that is quite disgraceful.
We may not agree with such a prejudiced view butthis is the important partas the regulation carefully stipulates that the employer's belief must be reasonable, I believe that there is both protection for the employee and a quite difficult defence for the employer. Those same people may similarly want to object and to discriminate against persons who live together, in the very quaint Victorian phrase, "without the benefit of clergy".
Paradoxically, the regulations prohibit discrimination on the grounds of the sexual orientation of an employee but do not prohibit discrimination on the grounds that the employee is living with a member of the opposite sex to whom he or she is not married. That in itself is discriminatory,
A few moments ago I referred to fertile grounds for litigation in defining the operation of Regulation 7. If we go by the precedent of previous anti-discriminatory regulations, I fear that these regulations, regardless of what I am sure are their good intentions, will land employers with claims for substantial compensation because of actions over which they have absolutely no control. The same Law Society brief very strongly shares that view.
Leaving aside the religious defence, if a fellow employee refuses to work with a colleague because of his sexual orientation, or if that employee in the course of an argument uses abusive language about the other employee's sexual orientation, then there is little doubt but that a claim for damages against the employer will follow. There is a difference in principle between discrimination on the grounds of a person's sex or race and this new type of discrimination for which we are being asked to legislate today. An employer would have no doubt about a employee's sexat least, I hope he would notor, in most cases, his or her race; but there would be no way that an employer could be certain of the sexual orientation of an employee or a potential employee. The same would apply to his or her religion. We could therefore find a person being refused employment or dismissed on perfectly normal grounds, and then launching a claim that it was a case of discrimination on the grounds of his sexual orientationof which the employer was not even aware.
Your Lordships will not have overlooked the fact that under this type of legislation, once the employee has established a mildly plausible case of the possibility of discrimination, that employer is faced with the almost impossible task of proving the negative. In following these directives, we have imported the concept of guilty until proved innocent.
The noble Lord, Lord Lester, has expressed the opinion that Regulation 7(3) is ultra vires the European Communities Act. I certainly would not dream of arguing a point of law with the noble Lord. There is another law, however, called Duggan's Law, which says that for every expert opinion there is an equal and opposite opinion. In this case, the opposite opinion is expressed by Professor Leigh of the University of Durham, whom I am quite sure the noble Lord, Lord Lester, recognises as a leading human rights academic, as well as being an adviser to governments at home and abroad. He argues:
Deplorable as discrimination on grounds of sexual orientation undoubtedly is, respect must be given to the genuinely and sincerely held beliefs of others. Surely we should not trample over those rights on account of an academic, technical argument about the validity of the exception.
In the circumstances, if the noble Lord, Lord Lester, presses his Motion to a Divisionhe said that he probably wouldwe will not be able to support him. Similarly, and with equal reluctance, we will support the passage of these regulations. We very much hope that the adverse consequences about which I have spoken, and which the Law Society fears, will not materialise.