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Lord Lea of Crondall: My Lords, I follow the right reverend Prelate in one respect—his caution against exaggeration on either side of the debate. There is a worrying tendency in this debate for people to go well beyond the question of the vires of the transposition of a European directive. The temperature of the debate has been raised well outside the scope of the Motion that the noble Lord, Lord Lester, purported to move. The noble Lord used the word "annul", but in his Motion the word is "amend".
I am a member of the Joint Committee on Statutory Instruments. Indeed, the noble Lord, Lord Avebury, mentioned the point that I probed on that committee. However, although I am a member of the committee and strongly support its report, I shall not be voting either way on the Motion. I shall make a couple of points about that.
First, as the right reverend Prelate pointed out, two debates are going on here. In one respect, one of them is ultra vires, since all we ought to be debating tonight is whether we agree about the question of doubt about the vires of Regulation 7(3). We should not be having the broad debate that we seem to be getting into. We should not be raising the stakes of tonight's debate as noble Lords on all sides have been, by making points that imply that the European directive transposition gives us a lot of scope to do this or not to do that. In fact, it is quite remarkable that we are having this debate on the transposition of a European directive, because there is no argument about the fact that we are transposing a European directive. The noble Baroness, Lady Miller of Hendon, made some remark about how this would have been done differently by a different government—I do not know whether that is the point that she was touching on—but broadly speaking, we all know that we are transposing a European directive with very little wriggle-room for how we transpose it.
The only wriggle-room for how we transpose European directives is to some extent what is made explicit in our transposition through regulations and what is left implicit. Regulation 7(3) in some respects makes explicit what, it can be argued, is implicit in Regulation 7(2), both following Articles 4.1 and 4.2 of the European Directive. For those noble Lords who doubt what I have just said, let me remind you of what is stated in Article 4.1 of the European Directive of which this is the transposition. The Equality Directive provides that Member States may provide that a difference of treatment which is based on a characteristic related to religion, belief, disability, age or sexual orientation,
- "shall not constitute discrimination where, by reason of the nature of the particular occupational activities or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement."
The ultimate reason why, in a sense, it does not matter what we do tonight, and the reason why industrial tribunals will inevitably have to look at some cases—there is no way in which the Archangel Gabriel could come down here and say what are the words to avoid anybody going to an industrial tribunal—is that these transpositions are going to be ambiguous when it comes to the behaviour of an individual and they will have to be tested. There is no easy way out of that, and whatever happens when the House divides, as it is said it will tonight, it should be recognised that this is a very important transposition of a European directive and it is unreasonable for people to say that this is a set-back for people when it is clearly a step forward, or if we do the opposite, to say that it is a leap further forward. This is a very solid step forward in protecting people's rights. People are grossly exaggerating what an industrial tribunal would
find on a case by case basis if Regulation 7(3) were not there. I caution noble Lords to deal with the rather narrow point of what is ultra vires. There is some doubt about it, but there is not as much difference as has been said in some parts of the debate this evening.
Lord Mayhew of Twysden: My Lords, I agree with the noble Lord, Lord Lea of Crondall, about the importance of distinguishing between arguments on the merits of the objective of these regulations and the particular regulation we are talking about, and on the other hand the technicalities—to use his word—of the means by which that objective is achieved. It was inevitable that this debate should give rise to very well informed and passionately felt submissions on each side of the arguments about the merits of the objective. I do not feel qualified to engage in that, and it would not be to the point that I want to address if I were to do so. The point seems to me to be a very narrow one; it is whether the committee was justified in what it said in its report at paragraph 1.11, two sentences of which I wish to cite. The report states:
- "The Committee considered that regulation 7(2) was justified by Article 4.1 of the Directive, but that regulation 7(3) might permit difference of treatment based on a characteristic related to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate, as envisaged by the Directive".
The question alone that I should like to address, and which forms the core of what the noble Lord, Lord Lester of Herne Hill, said to us some time ago now, is whether the committee was justified in observing that doubt. I have very great sympathy with those who drafted the regulations. It is an extraordinarily difficult subject. To transpose—to use the word used by the noble Lord, Lord Lea—the requirements of Article 4.1 into our own domestic legislation in a way which meets the norms that we look for, high among which is certainty, is an enormously difficult job.
The right reverend Prelates, seated opposite in such impressive numbers, will never have preached a sermon of this character themselves but they will recognise the characteristics of a sermon in which the preacher displays and shares his doubts but fails to come to a conclusion that can be described as teaching. I am afraid that my own contribution tonight at this late stage is going to have that melancholy characteristic.
It seems to me that one starts with looking at Article 4.1 and one sees there that the draftsman has recognised that it is necessary to take account of the specific susceptibilities that arise when a characteristic related to, for example, sexual orientation constitutes a genuine and determining occupational requirement by reason of the nature of the particular occupation or activities concerned, provided that it is proportionate and so forth. That is the language that has found its way into Article 4.1 and that is the way in which the draftsman of the article has sought to meet those susceptibilities. The question—it is quite a narrow one—is whether the recently added Regulation 7(3) contains language that reliably falls within that
requirement of being a genuine and determining occupational requirement. Regulation 7(2) does and the committee was happy about that, but does Regulation 7(3)? It has to be able to come within the envelope, or under the umbrella, of being a genuine and determining occupational requirement.The language of Regulation 7(3) speaks of employment,
- "for purposes of an organised religion"—
- "the employer applies a requirement related to sexual orientation".
Does a requirement related to sexual orientation always fall within and never outside the ambit of a genuine and determining occupational requirement? I refer to a particular sexual orientation which is a genuine and determining occupational requirement. That is the question. Of course it is possible to have more than one view. Sir Anthony Hammond QC advised the department. I have the greatest respect for him. He was legal adviser to the Home Office and after that Treasury Solicitor. But when I read the record of the committee's evidence taking, it seems to me that there was revealed a very sensible ground upon which it had doubt. Mr Magyar, the legal adviser, was very frank. He said:
- "I think that the two provisions are covering slightly different situations. 7(3) may be slightly broader but both—".
- "Only slightly broader?".
- "I would say so. The criteria are drafted strictly".
I do not know as yet how I am going to vote on the matter, and I shall be influenced very strongly, not only by some of speeches that I have heard—I shall not particularise—but by what the Minister is going to say. I am interested in whether he accepts that there is a doubt, whether he thinks that there is a doubt but it is worth putting up with, or whether he thinks that it might not in all circumstances be better not to throw the baby out with the bathwater. We have heard that expression already from my noble friend. He might think that it might be wiser to look after the baby for a little longer and change the bathwater.
At the moment it seems that, in this rather passionate debate, we run a risk of overlooking our duty to legislate in a way that is certain and clear, and will not put unfortunate people to the expense and stress of litigating to find out what we really meant and then going to appeal and so on. I have shared my
doubts. I have not attempted to teach. In those circumstances, it has been the worst kind of sermon. I want to hear what the Minister says.
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