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I shall not continue but I have no doubt that if this exception were there, we would immediately find ourselves in direct conflict with EU and ECHR law. They accommodate freedom of conscience, religion and belief rightly, but they do not do so in this way. I entirely respect where the noble and learned Lord is coming from. I respect his religious beliefs entirely. I understand the argument, but I do not agree with it.
The Lord Bishop of Winchester: My Lords, I, too, when I read this amendment recently, was fascinated to see in which direction the noble and learned Lord, Lord Mackay, was going. I saw, on the one hand, the kinds of things that the noble Lord, Lord Lester, was saying, but, on the other, saw the fundamental importance of what the noble and learned Lord has put in the amendment.
However, before saying any more, I want to appreciate what the noble Lord, Lord Lester, said about the churches and the efforts that together we shall be making later in this Bill. I have a strong sense that the Government are now engaging to find a way through those elements that we shall perhaps come to the time after next. The question, as I hear it, that the noble and learned Lord, Lord Mackay, is putting runs somewhere in between the two noble Lords. As I heard him, I, too, believe in this question of the primacy of conscience, as I know the noble Lord, Lord Lester, does. However, the question that the noble and learned Lord is putting is: how hard will we work in this whole area of discrimination and equality to accommodate with the maximum fairness as many of the points at which a range of rights are in tension?
That seems to be the question that the noble and learned Lord is asking your Lordships from a series of standpoints-if this is, as it were, a probing as well as a principled amendment, although I am not going to put words into the mouth of the noble and learned Lord, Lord Mackay, of all people. How hard will we work to try to accommodate elements of where we are in abrupt tension in all this very important and complex scene of rights, discrimination and equality?
He has just referred to the registrar and civil partnerships. He will remember that we had a spirited set of exchanges during the passage of the Civil Partnership Bill through your Lordships' House. Some of us then said-and the noble and learned Lord drew the analogy-that this was rather like medical doctors and abortion, where there is conscientious objection. Some of us were disturbed, as well as full of regret, that your Lordships' House did not accept that point in relation to civil registrars and civil partnerships and that something fresh was being brought into the registration service. It seemed to us that that point of view was legitimate.
We have been around the same course as regards the sexual orientation regulations and Roman Catholic adoption agencies. Many of us thought that there are plenty of other adoption agencies, so why keep pressing that point? That would be a good example of what I am suggesting. The implication of the amendment of the noble and learned Lord, Lord Mackay, is that each of us-if I can personalise it in this way; I just as much as you, you just as much as me-is bound to work as hard as we can to hold the whole range of different people's rights, because there is a sense around that some rights are better than others. Your Lordships' House must take extreme care that we do not affirm that.
Baroness Thornton: My Lords, it will not surprise the noble and learned Lord that I will speak against his proposed new clause. It would mean that any service provider could refuse to provide goods or services if doing so would make them complicit in an action to which they have a conscientious objection.
It is our view that no one offering goods or services to the public on a commercial basis should be able to discriminate on any grounds. However, neither the current law nor the Bill requires service providers to provide a service that they would not normally provide. In the noble and learned Lord's bed and breakfast
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We are talking here about everyday activities-such as shopping, going to the bank, eating in a restaurant, seeking assistance from the police, applying for planning permission or visiting a health clinic-which could for some people be made extremely difficult and unpleasant by discrimination. People are entitled to expect fair and unbiased treatment from commercial and publicly funded organisations, regardless of their protected characteristics. This Bill is designed to ensure they receive that.
For example, both local authority and privately run care homes offer a great deal of comfort to people in their later years. This is a privilege that should be available to everyone, not dependent on characteristics such as sexual orientation. People of all sexual orientations have the right to good quality care throughout their later years of life.
To achieve this, we understand that people working in both the public and private sectors may occasionally be required to undertake duties that they may not always agree with privately. However, as an employer, a service provider can when reasonably able take practical measures to respect the private views of staff. For example, if an individual registrar does not want to conduct civil partnership ceremonies because of their religious beliefs, a local authority could arrange for a different registrar to conduct the ceremony if there is one available. However, if-
The Lord Bishop of Winchester: I am grateful to the noble Baroness for breaking off. Surely in that case the precise point was that the local authority was not prepared to work in the way she has just described. Had it been so prepared, there would be no example.
The law therefore already allows for a measure of flexibility, although ultimately it is right that a service provider can require staff to perform certain perfectly lawful and legitimate functions if necessary. Allowing service providers a measure of flexibility helps them achieve a balance between ensuring that the end-user of the service receives a service without discrimination but that as an employer they can respect the private beliefs of their staff. This does not mean that a service provider needs to provide a service in a way that they would not normally provide it. For example, a Christian bookshop would not suddenly be required to stock a copy of the Koran. However, if a Muslim person wanted to buy a copy of the Bible, the bookshop could not refuse to sell him one.
The Government are determined to tackle discrimination or disadvantage because of any protected characteristic and there is no hierarchy of rights. We believe the Bill strikes a balance between potentially conflicting rights, for example by providing some specific exceptions for religious bodies on grounds of their doctrine. While the Equality Bill maintains everyone's right to express in a legitimate manner both religious and non-religious beliefs, it is only right that people employed by commercial and publicly funded organisations are not allowed to discriminate on any grounds, no matter what their private belief.
On the issue raised by the right reverend Prelate about abortion, the Human Fertilisation and Embryology Act 1990, as well as the Abortion Act 1967, contain provision that makes it clear that no person who has a conscientious objection to participating in any activity governed by these Acts shall be under any duty to do so. The law therefore explicitly protects those who have a conscientious objection from taking part in abortion treatment. That is where Parliament struck the balance between conflicting rights.
Lord Lester of Herne Hill: Is it not also the case that, quite properly, Parliament has required that if a particular doctor has a conscientious objection to carrying out the abortion but the termination of pregnancy is lawful and needed, the health authority has a duty to ensure that it is carried out, not by coercing that person in that context but by making sure the service is provided?
Lord Elton: Could one not apply the same practice to the case that the noble Baroness raised in her substantive remarks, which the right reverend Prelate then intervened upon? Surely the Bill would be more effective if there were a duty on an authority to take reasonable steps to accommodate the conscientious positions of its employees.
Baroness Thornton: I think I expressly said that we recognise that flexibility is built in-that an employer and service provider can, when reasonably able, take practical measures to respect the private views of staff. That is the case.
Lord Lester of Herne Hill: This is not a very satisfactory way of proceeding because we are dealing with the issue in bits and pieces. However, under the European human rights convention and the Human Rights Act, is it not the case that if one were to act disproportionately and coerce someone against their conscience, that would violate their right to freedom of conscience, so in the end there would be a question of proportionality on the facts? It is not a question of black or white; under the Human Rights Act and the European convention the law sensibly allows a fair balance to be struck and maintained.
Lord Mackay of Clashfern: First, I thank the noble Lord, Lord Lester of Herne Hill, for saying that the amendment would produce a very large loophole. That is an immediate recognition that a lot of people are in this position. The noble Baroness shakes her head but I do not understand how she can get round the idea that it will cause a large problem if the amendment is accepted and, at the same time, suggest that that will not be the case. However, that is perhaps not the most central point that I want to make.
My central point is that if you take account, as I have sought to do, of the distinction between sexual orientation on the one hand and, on the other, practice arising from that, as well as sexual practice arising in the case of heterosexual people, then I do not believe that European law-or, indeed, domestic law if it were modified-would in any way be inconsistent with the general law of the European Union.
The Government's response is that there is a flexibility that enables private views to be accommodated to a great extent. If there were, I would not be moving this amendment. However, the fact is that the legislation has been built up in an extremely rigid way, as the case of the registrar shows. It is very often the case that those with strong conscientious objections are also very loyal and trustworthy-
Baroness Thornton: Will the noble and learned Lord allow me to ask a question? Would he for a moment substitute "ethnic minority" and "black" for "sexual orientation"? If he did that, he might see the problem that the noble Lord, Lord Lester, and I are having with his amendment.
Lord Mackay of Clashfern: The situation is rather different. I do not know many mainline Christian organisations that have a conscientious objection to some form of interaction with black people. That makes a difference. I know that there was a regime that sought to establish itself on that basis, but that is not the situation with which I am dealing. I am dealing with the situation relating to the organisations that exist in this country and the sorts of views that they have. As the judge in Ireland said, it is an orthodox religious view with a pretty long history. It is a history that existed before I was born, which was quite a long time ago, and it is much older than that.
Lord Lester of Herne Hill: My Lords, I think I have an experience that the noble and learned Lord does not have. My elder child is gay and came out many years ago. I do not think he would agree that the prejudice that gay people feel from homophobic people is the careful distinction between being gay and practising homosexuality in the bedroom. The problem is that homophobic discrimination is not so sophisticated. The mere fact that you are known to be gay gives rise to a lot of discriminatory treatment. When the noble and learned Lord says his remark about this being a very wide loophole shows that there are terrible cases,
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Lord Mackay of Clashfern: My Lords, as I said, it is not the best point I wanted to make but it does acknowledge the fact, as the noble Lord said a moment ago, that it is a big situation. I am not for one moment seeking to say that discrimination on the ground of sexual orientation could be justified on the basis of conscience-not at all. I am saying that if doing what this requires in a particular case means that the person who is doing it is complicit in an action that is against his conscience, then he should not be compelled to do it under our law. That is nothing whatever to do with the example that the noble Lord has given, where there is no question of complicity in any action. Discriminating against, harassing or bullying people on the grounds of their sexual orientation is absolutely anathema to me. It has always been so. I have had experience in government office in relation to that. I am absolutely clear about that. I am also clear that there are situations in which this law is apt to require somebody to take action which results in something that is contrary to his conscientious view and therefore is in breach of his conscientious objection. If there is a real conscientious objection, I cannot see why the law cannot recognise that. The number is not large-the amendment is narrowly drawn. Although, according to the noble Lord, Lord Lester of Herne Hill, it is a big problem, I do not believe that this, in the way I would phrase the amendment, is a big point.
The Lord Bishop of Chichester: Before the noble and learned Lord stops, despite the hour, I should say that I am grateful that he is pressing the point about the distinction between orientation and practice. It seems to be fundamental. We will not agree about that, but it is one of the underlying questions that has bedevilled this discussion. There is another that the noble Baroness highlighted a moment ago, which we need to take note of before we finish. She repeated several times an expression about the need to respect people's private beliefs. One reason why I opposed the amendment trying to get rid of "philosophical" this afternoon alongside "religious" was precisely because our beliefs, whether religious or philosophical, inform our public attitudes and behaviour as citizens. The attempt to privatise belief, whether philosophical or religious, is a profoundly dangerous tendency and one that we need to address as we consider not only this but later amendments.
Lord Mackay of Clashfern: We are seeking to privatise the practice that should arise from the belief. If you do not act according to your beliefs, they are not worth very much. Belief is normally demonstrated as genuine by the way in which the person lives.
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