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Lord Lester of Herne Hill: My Lords, I realise that the Minister intends to move on to another aspect. He used the word "necessary". What he said was that it had to be shown to be "necessary" in terms of Regulation 7(3)(b) too. Where is that word to be found, and how can the proportionality test be read into the words of the provision?
Lord Sainsbury of Turville: My Lords, it is necessary to be shown that that is the case. That is clearly stated in Regulation 7(3). It says that the paragraph applies only "where"—and therefore it is necessary that—those tests are applied. I would have thought that that followed clearly in Regulation 7(3).
As I said, the second test is then applied and there are the methods that have been referred to. Both elements have to be satisfied before the second test can be met. It is, therefore, a very strict test and one that will be met in very few cases. The position of a cleaner or a librarian, which has been raised many times, has to be judged against those criteria. They are strict criteria and one cannot say in a specific case what the situation will be. In such cases one has to apply the criteria and see whether or not they are fulfilled.
The noble Baroness, Lady Miller, raised the question of what was meant by a significant number of followers. Ultimately, that is a question of fact for the tribunals or the courts and will depend on the
circumstances of each case, but it is not expected that this question should prove more difficult to resolve than other questions of fact which are regularly faced by the courts. Sexual orientation Regulation 7 has to be phrased in those terms to be workable in practice. If we had stricter wording, referring, for example, to a majority of the religion's followers, that could lead tribunals and courts to expect detailed statistical analysis to be submitted to them on the number of followers with religious convictions about particular requirements or the numbers without such religious convictions. I think we would all agree that that would not be practical.Finally, what is the difference between Regulations 7(2) and 7(3)? There are two differences. First, Regulation 7(2) is of general application. It covers any employment where being gay, straight or bisexual is a genuine occupational requirement. By contrast, Regulation 7(3) applies only where employment is for the purposes of an organised religion and either religious doctrine or the nature and context of the job, together with the religious convictions of the religion's followers, gives rise to a genuine occupational requirement. Regulation 7(3) then applies to very few jobs. Only in very limited circumstances would a requirement imposed on someone whose job does not involve participation in religious activities be justified under Regulation 7(3).
Secondly, Regulation 7(2) applies where sexual orientation is a genuine occupational requirement. In other words, one has to be gay, straight or bisexual to do the job. Regulation 7(3) applies where a requirement related to a sexual orientation is a genuine occupational requirement. It is slightly wider than Regulation 7(2) in that respect but reflects the wording of Article 4.1.
To conclude, Regulation 7(3) is necessary if the regulations are not to interfere in Church doctrine. We understand how the Joint Committee on Statutory Instruments reached its conclusion and our extensive consultation leaves us in no doubt about the strength of feeling among the gay and lesbian community. But having considered all the arguments carefully, we are satisfied that Regulation 7(3) is intra vires and that from December the courts and tribunals will be able to construe this tightly drawn exception in a way that is consistent with the directive.
I understand entirely why we have focused in this debate on the provisions in Regulation 7(3). While an important part of the regulations, it is, of course, only a small part. We must not forget that there is no protection currently for those who experience harassment, discrimination or victimisation at work on grounds of their sexual orientation.
These regulations are designed to outlaw that kind of unacceptable treatment for the first time. They have a wide application. They cover employment and training across England, Scotland and Wales whatever the size of the organisation, whether in the public or private sector. They represent a significant addition to our domestic equality legislation and will make a practical difference to the lives of millions of people. I
believe that they should be welcomed. I do hope that that has served to reassure the House and that the noble Lord, Lord Lester, will feel able to reconsider his Motion.
Lord Lester of Herne Hill: My Lords, first, I thank everyone who has taken part in this important debate for having done so at this late hour, especially the Minister for his full, clear and helpful reply. Secondly, perhaps I may make clear that, like the Minister, I very much welcome the regulations and do not agree with the attack made upon them by the noble Baroness, Lady Miller of Hendon, suggesting that somehow they are not regulations that should generally be supported. I strongly support them. In particular, I strongly support the commitment to equality of treatment without discrimination placed on sexual orientation that they embody. As the Minister knows from previous debates, I regret only that they are by way of subordinate legislation and therefore can cover only employment and occupation. However, that is a matter for another day.
Thirdly, I must make it quite clear that there is no dispute about the need to balance, on the one hand, the fundamental right to religious freedom with, on the other, the fundamental individual right to equality without discrimination—indeed, not just an individual right, but the right of a vulnerable minority. I cannot improve on the wisdom, on this occasion as previously, of the right reverend Prelate the Bishop of Worcester in what he has said about that. There is a question of a fair balance, however, and I entirely accept that the Government have been struggling to secure a fair balance.
Fourthly, the debate today reminds me of debates on the Human Rights Bill when, at an early stage, the Churches sought—in a completely misconceived way, I have to say respectfully—a blanket exemption from the application of the Human Rights Bill to the Churches. At that stage the Government quite rightly did not accept their pressure and the religious freedom provision in the Human Rights Act goes no further than is necessary.
The central question raised this evening, as the noble and learned Lord, Lord Mayhew, rightly reminded us, is a quite narrow but important one. The question is whether, when one looks at Regulation 7(1), (2) and (3), Regulation 7(3) is, in the words of the Minister, a narrowly and carefully tailored provision based on the strict criteria of proportionality. That is the question.
If your Lordships would for the last time take up Regulation 7 and look at it again, Regulation 7(2) is quite clear, because it uses as its touchstone the notion of proportionality. One has to be of a particular sexual orientation; there has to be a genuine and determining occupational requirement; and it must be proportionate to apply that requirement in the particular case. That would apply equally to a religious context or any other context.
The vice, as I have described it, of Regulation 7(3) is one of over-breadth and vagueness. Leaving aside the vagueness of what is meant by "organised religion",
the vice in Regulation 7(3)(b), if one looks at it carefully, is that there are no words of limitation. It is sufficient for the employer to apply,
- "a requirement related to sexual orientation"—
- "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".
I agree with the noble Lord, Lord Brennan, that one should never trust one's own opinions, even if one is so foolish as to express them in public. I only expressed my opinion in the way I did because I am supported by the Joint Select Committee on Human Rights and their opinion, and I take comfort from that.
I have listened very carefully to the Minister and I agree with him that a tribunal or court might seek to read down Regulation 7(3) in the way that he suggests, to try to make it compatible with the directive. It is a technique that the judges increasingly have to adopt with badly drafted regulations. My plea this evening is to seek to avoid the courts having to remake these regulations by a process of interpretation, because it is our job as lawmakers to try to get the law right. I do not seek a fatal amendment opposing the regulations; I simply ask that they be sent back so that proportionate language can be inserted.
No noble Lord who spoke in this passionate, rational debate commended the language used in Regulation 7(3). The right reverend Prelate the Bishop of Blackburn, who did his very best to explain the justification for the regulations, said at the end of his important speech that he, too, was unhappy with the language that had been used because of its over-breadth.
With great respect for what the Minister said, the regulations are not satisfactory. The only way that we can show our disapproval is by seeking the opinion of the House. I regret, therefore, that I must now test the opinion of the House.
10.15 p.m.
On Question, Whether the said Motion shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 85.
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