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Baroness Whitaker: My Lords, pace what my noble friend Lord Lea said, and indeed the noble and learned Lord, Lord Mayhew of Twysden, I just want to add a very small footnote to what the right reverend Prelate the Bishop of Worcester said in his very profound address. The noble Lord, Lord Lester of Herne Hill, set out the dubious legality of Regulation 7(3), and my noble friends Lord Alli and Lady Turner have eloquently described the implications.
I just want to say that it seems to me that Regulation 7(3) does not also follow the spirit of Article 13 of the Amsterdam Treaty, which I had some involvement in drafting. Article 13 is a fundamental part of our new basis of agreed rights. It flows ultimately from the UN Charter, the European Convention and the Human Rights Act, rights that we need to assert as our common ground in our multicultural society. Exactly for the reason that the faiths and beliefs of our societies ought to be respected, we need to respect them within a common ground of tolerance underpinned by universal human rights and fundamental freedoms.
Freedom from discrimination in employment, qualified only on the narrowest grounds, is one of the most important of these. Freedom from discrimination on the grounds of sexual orientation is another. This last freedom is the least honoured in everyday culture. One can hear prejudice which, if it were about women or people from different ethnic backgrounds, would be repudiated—even prosecuted—spoken quite freely about sexual orientation. It is time to take a stand, and I do urge the Government to think again.
9.45 p.m.
Lord Clement-Jones: My Lords, this is less of a speech than it is a set of questions to the Minister. We have heard some fine speeches today, many of which have been very technical about the relationship of these regulations to the original directive. However, when looking at whether these regulations are acceptable, it is the outcome that is important—the impact that they will have on individual lives.
The right reverend Prelate the Bishop of Blackburn, whom we all respect, made it clear that he would only wish these regulations to be taken so far. Rather than bar homosexuals in regard to sexual orientation, I think that he was talking about abstinence. The same debate continues about the appointment of the Bishop of Reading.
However, the first question is whether or not a religious organisation such as the Church of England, when putting an advertisement in a newspaper, for instance, could say "heterosexuals only need apply". Will that be legal? At what level of employment will that be legal?
Secondly, at interview, an employer will ask questions of prospective employees. What kind of questions will the employer be entitled to ask? Will he
be able to ask if the candidate is gay, lesbian, in a relationship, or celibate? These questions flow from the regulations. Perhaps the Minister can clarify whether it would be perfectly proper for a religious organisation to ask them.I live in Clapham, where the Board of Education of the Church of England is sponsoring a city academy. Many people had their doubts about whether it was proper for the board to be a sponsor. What is the nature of the sponsoring relationship in those circumstances? What signals are sent out to parents and prospective pupils? Will the school be able to interrogate potential employees about their sexual orientation or not?
My questions are practical, not technical. They address issues that will be of great importance if these regulations are passed tonight. I fervently hope that they are not passed.
Lord Brennan: My Lords, I ask for the patience of the House in listening to a short speech. I sincerely admire the strongly held convictions of my noble friends and colleagues on the other Benches. I hope that they respect the strongly held beliefs of the people who disagree with them. This is not the occasion to enter into a debate of Church and religion versus gay and lesbian rights. The question is whether or not these regulations are intra vires.
Some things need to be plainly said by way of background. First, the Human Rights Act 1998 does not provide a right against discrimination of the kind that we are debating this evening. That is why the Minister certified that these regulations were compatible with the Act. Secondly, the preamble to the directive explicitly recognises the ability of member states to take into account in formulating the directive the interests of religious and Church organisations within each member state. In addition, we must bear in mind that the law in this country—I repeat, the law—allows Churches and religious organisations to act in a way that is similar to that contemplated by Regulation 7(3).
Section 19 of the Sex Discrimination Act is a similar provision. So far as I am aware, it has not produced a large-scale litigation suggested by the noble Lord, Lord Lester. Equally, Section 60 of the School Standards and Framework Act 1998 explicitly provides that the governing body of a voluntary-aided school shall have regard in connection with the termination of employment of a teacher to any conduct on his or her part that is incompatible with the precepts, tenets or religion of the school in question. That is the law of our country now. Those considerations illustrate the flaw in seeking to convert the regulations into the confrontational position that I said was not justified.
I hope that the noble Lord, Lord Lester, will forgive me for saying that the confidence that any lawyer reposes in the quality of his own opinion is rarely a guide to its reliability. I include myself in such an analysis. However, when the Joint Committee considered Regulation 7(3), it had before it and took
into account, at paragraphs 1, 12 and 13, seven discrete but cumulatively effective arguments in favour of the legality of Regulation 7(3). It is open to lawyers—commentators are not lawyers—to doubt whether provisions are in fact within the vires of the directive or not. The reassurance that I give to the House that the directive is being properly applied involves the point made by the noble and learned Lord, Lord Mayhew. It is not a question of whether Regulation 7(3) stands or falls; it is a question of whether, in any particular case in which a Church or religion seeks to rely on Regulation 7(3) in its defence, it is required to show under Article 4.1 that the directive in this context commands the analysis of Regulation 7(3) and that the decision represented a genuine and determining occupational requirement that has been applied proportionately.
Lord Lester of Herne Hill: My Lords—
Lord Brennan: My Lords, I am sorry; I do not propose to give way. This is a long debate. If the noble Lord will forgive me, he took a long time himself.
This is not an occasion for battle; it is an occasion for balance between different rights. The Government sought to strike the right balance between competing interests. I believe that they have done their best and we should agree to the regulations.
Lord Sainsbury of Turville: My Lords, I welcome this opportunity to explain the rationale behind Regulation 7(3) of the sexual orientation regulations and to clarify its scope. We have a duty to think very carefully indeed before making any exception for equality legislation. A provision that concerns the sexual orientation of people employed for the purpose of organised religion is clearly a particularly sensitive matter, and it is right that we should consider the evidence set out by the Joint Committee on Statutory Instruments in its 21st report of 2002-03 before going on to consider the merits of the regulations as a whole.
The noble Lord, Lord Lester, is widely respected on all sides of the House for his long-standing commitment, experience and achievements in the fields of equality. He set out the issues and his own views in a characteristically measured and fair way. In doing so, he did a service to the House.
Before I go any further, I must mention the report of the Joint Committee on Statutory Instruments. Again, it is a measured and genuinely constructive contribution to the debate. The committee concluded that the doubt about the vires of Regulation 7(3) was sufficient to draw it to the attention of both Houses but the committee has not, contrary to some rumours, said that the regulations are ultra vires. Indeed, it notes that the Government's arguments about the compatibility of Regulation 7(3) with the directive might succeed if tested in the courts. We are firmly of the view that it would.
We have made a considerable investment in working with a wide range of stakeholders on equality policy since 2000. In addition to bilateral meetings, seminars,
conference and on-line research, there have been no fewer than three national consultation exercises in the past three years, prompting just short of 4,000 submissions. I believe that they have provided an invaluable basis of evidence from which to take decisions.I say to the noble and learned Lord, Lord Mayhew, that the baby has been sitting in the bath water for a very long time with people throwing ducks and sponges at it. It is now time to take it out of the bath, dry it, and send it to bed. I hope that the House will do that this evening.
The first exercise informed our negotiations with other member states. The second focused on principles which would underpin new equality legislation. But, as so often happens, it was the third consultation with the publication of detailed draft regulations, which helped us to highlight and resolve practical difficulties.
It became clear that with the regulations as drafted the Churches would have some difficulty upholding the doctrine and teaching of their faith in relation to particular posts. I suspect that quite a variety of faiths represented on the Benches this evening may disagree quite strongly with other religious beliefs, but we recognise and respect the fact that they are genuinely held.
In the same way we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts.
The right reverend Prelate the Bishop of Worcester made a very interesting and fine speech, but I say to him that the logic of his comments about taking out the words "strongly held religious convictions" means that we would have to go back to a situation where religious doctrine and the reasonableness of it, would have to be debated in tribunals.
The employment directive is explicit in recognising the status of Churches and religious associations. As Lord Russell said once in this House,
- "The difficulty comes not when evil is pitched against good, but when two goods are pitched against each other".
I turn to the point made by the noble Lord, Lord Lester, who asked what the "etc" meant in the heading,
- "Exceptions for genuine occupational requirements etc".
This is not a question of extreme positions. Article 4(1) of the European directive is quite clear that religious considerations can be taken into account. What we are debating this evening is exactly where that line is drawn.
Under these circumstances I believe that the Government need to take a lead—and we did that in preparing Regulation 7(3). It resolves the problem of interfering with doctrine and teachings while remaining consistent with the directive. We believe that Regulation 7(3) is lawful because it pursues a legitimate aim of preventing interference with a religion's doctrine and teaching and it does so proportionately because of its narrow application to a small number of jobs and the strict criteria which it lays down.
There is no need to copy out the words "genuine", "determining", "legitimate", "proportionate", because the provisions embody the obligations which are set out in the directive.
Having explained why Article 7(3) is necessary, I wish to focus on the scope of the provision. I agree entirely with the noble Lord, Lord Lester, that this is a crucial issue. As well as dealing with the points that he and the Joint Committee on Statutory Instruments have raised, I hope that it will assist the House if I pick up on others which have been reflected in press reports over the last week.
When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. The words on the page reflect our intentions. The first clause reads:
- "This paragraph applies where—(a) the employment is for the purposes of an organised religion".
First, this is no "blanket exception". It is quite clear that Regulation 7(3) does not apply to all jobs in a particular type of organisation. On the contrary, employersmust be prepared to justify any requirement related to sexual orientation on a case by case basis. The rule only applies to employment which is for the purposes of "organised religion", not religious organisations. There is a clear distinction in meaning between the two. A religious organisation could be any organisation with an ethos based on religion or belief. However, employment for the purposes of an organised religion clearly means a job, such as a minister of religion, involving work for a church, synagogue or mosque.
A care home run by a religious foundation may qualify as a religious organisation, for example. I do not wish to make light of differences which the involvement of a church, mosque or synagogue can make to the culture of an organisation, but I believe that it would be very difficult under these regulations to show that the job of a nurse in a care home exists,
- "for the purposes of an organised religion".
The noble Lord, Lord Clement-Jones, asked about a number of human issues that turn out also to be technical. He raised the question of an advertisement. That could not say "only heterosexuals need apply"
unless it was a genuine occupational requirement that the job holder be heterosexual. That would depend on the application of the clause.Regulation 7(3) does not stop there. Even if an employer can show that the job exists for the purposes of organised religion, and that is a significant hurdle, he may only apply a requirement related to sexual orientation if one of two further tests are met. In the first test the requirement must be applied to comply with the doctrines of the religion. We do not believe that that test would be met in relation to many posts. It would be very difficult for a church to argue that a requirement related to sexual orientation applied to a post of cleaner, gardener or secretary. Religious doctrine rarely has much to say about posts such as those.
If the first test is not met, what about the second? There the church will have to show that the requirement related to sexual orientation is necessary,
- "because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers . . .".
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