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3.45 pm

Baroness Thornton: Amendment 97E in the name of my noble friend Lord Alli would mean that a requirement related to sexual orientation could no longer be applied by an organised religion in relation to employment for the purposes of the religion. For example, the Church of England could no longer require a gay Minister to be celibate, should it so wish. Paragraph 2 of Schedule 9 replaces and harmonises separate exceptions in current discrimination legislation for occupational requirements where the employment is,

The existing exceptions are contained in Section 19 of the Sex Discrimination Act 1975 and Regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003.

Paragraph 2 and Regulation 7(3) both refer to a requirement "related to sexual orientation" rather than to be of a particular sexual orientation. This choice of wording was deliberate so as to accommodate the concerns of some churches about certain forms of sexual behaviour rather than sexuality as such. However, a person is protected from discrimination because of how their sexual orientation is manifested, such as being in a same-sex relationship, as well as because of their sexual orientation. If "requirement related to sexual orientation" was removed from the exception, a church would not be able to require a minister of religion to be celibate if they are not married. This is because only a person who is heterosexual could meet the requirement to be married. Therefore, the requirement would constitute discrimination because of sexual orientation, unless it was allowed by the exception.

In the Government's view, paragraph 2 of Schedule 9 strikes an appropriate balance between competing rights. The rights in question are the rights of followers of organised religions to manifest their religion and the rights of others not to be discriminated against because of sexual orientation. The Government would risk upsetting that balance if we were to prevent churches and other organised religions from manifesting their religion in the limited circumstances allowed by the exception.

The Joint Committee on Human Rights also considers in its recently published report on the Bill that,

In that case, the High Court decided that Regulation 7(3) of the 2003 regulations does not interfere with any rights under Article 8(1) of the European Convention on Human Rights. In other words, Regulation 7(3) does not involve any violation of the private rights of

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gay, lesbian and bisexual people. It simply limits the scope of what the regulations add to existing rights. That applies equally to paragraph 2 of Schedule 9 because it has the same effect as Regulation 7(3) of the 2003 regulations.

Amendment 119A, also spoken to my noble friend Lord Alli-

Lord Lester of Herne Hill: In the Amicus case the Minister referred to, the learned judge Mr Justice Richards went on to say:

"It was entirely proper ... for the State to seek to balance the rights of homosexuals against those of followers of organised religions. The strength of feelings on both sides is amply demonstrated by the claims ... in these proceedings. The balance struck is proportionate".

He also made clear that the exception had to be strictly construed. Can the Minister confirm that?

Baroness Thornton: The noble Lord is, as ever, completely right and I thank him for his remarks.

Amendment 119A, as the noble Lord, Lord Hunt, pointed out, is a different issue. This amendment seeks to remove the prohibition which prevents civil partnerships from taking place in religious premises and from including religious language. This amendment, however, is not a workable solution to this issue. Amending the Civil Partnership Act in this way could lead to inconsistencies with civil marriage, have an unexplored impact on devolved Administrations, and lead to confusion on what is permitted and what is required. I will therefore be asking my noble friend to withdraw his amendment. However, as with many others who have spoken, I am not unsympathetic to his intentions.

I will outline why we think there is a problem and what issues would need to be solved for us to proceed with this matter. The Government have been at the forefront of introducing measures to protect the rights of lesbian, gay and bisexual people. The Equality Bill replicates the comprehensive protections from discrimination because of sexual orientation which we put in place in 2003 in the employment area and extended in 2007 to services and public functions. Civil partnerships provide lesbian and gay couples with legal recognition of their relationships, giving them vital protections and benefits. As has already been mentioned, 35,000 couples have formally registered their relationship since the Act came into force at the end of 2005. The noble Lord, Lord Hunt, asked if research has been undertaken on how many people have added a blessing to this. I do not have those figures but the noble Lord's point underlines the point I was making about the things we need to consider as we move forward in this area. Civil partnerships were originally designed to be broadly similar to civil marriage. Let me repeat what my noble and learned friend the Attorney-General said:

"Just as with civil marriage, these unions will be entirely secular and the restrictions on religious content and religious premises therefore mirror the position for civil marriage".-[Official Report, 12/5/2004; col. 139GC.]

That is one of the issues that would need to be resolved.

My noble friend wants lesbian and gay couples to have the opportunity to enter into a civil partnership in a religious setting if they wish to do so and if the

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religion in question allows it. That is, at present, not permitted. Indeed, it is expressly prohibited in the provisions that my noble friend's amendment seeks to delete. As is the case for civil marriage, which is regulated by the Marriage Act 1949, civil partnerships are entirely secular in nature. As such, they cannot take place in religious premises or contain any religious language. The secular nature of these civil unions clearly separates them from religious unions. It is open to churches and the religious community to arrange blessings for civil unions or not, according to their own tenets.

My noble friend's amendments would change the present position of parity between civil partnerships and civil marriages. We would find ourselves in the anomalous position of allowing, for example, prayers to be said at a secular venue in the course of forming a civil partnership but not when solemnising a civil marriage. One consequence would be that this would appear to discriminate against heterosexual couples who might want a religious element to be added to the proceedings for their civil union. We have to consider the practicalities of that situation. Would he require a now secular registrar to carry out religious services? Would members of the clergy be able to conduct a ceremony not in their place of worship? These are the kinds of issues that need to be teased out.

As we have heard, some denominations, such as the Quakers, have been clear about their wish to carry out same-sex religious partnerships. However, different faiths have different views on these issues. Further, the legal position in relation to the solemnisation of religious marriages differs between different faiths, and such matters are often closely entwined with doctrine and teachings. For instance, in some faiths it is the building that is approved for the solemnisation of marriages, while for others, such as Quakers and Jews, there are greater freedoms about where to marry. Under the Marriage Act 1949, places of worship are currently registered only for the solemnisation of marriage, and therefore we could end up with the situation where we have legislated for religious partnerships but there are no buildings where they can take place and no one who can perform such a ceremony. There are also, as ever, different arrangements for Scotland and Northern Ireland. These are not reasons for not looking seriously at the issue that my noble friend has raised, but I hope that they illustrate the complexities of moving forward.

We fully accept the fundamental importance of this issue to many same-sex couples, and we recognise the strength of feeling that some people have about the need for change. We also recognise, though, that any change would bring into play some fundamental issues and would risk undermining the parity that has been carefully established between civil partnership and civil marriage. Any change can therefore be brought only after proper and careful consideration of these issues, which is why it is important that we listen, discuss and consider views on this important issue, particularly the views of those churches and organisations that want to conduct same-sex unions on a voluntary basis so that same-sex couples can have the opportunity to formalise their relationships in a religious setting.

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We want this dialogue to move forward and we want all those with an interest in this issue to have their say. We believe that this careful consideration will pay off in how we proceed together to the next stage of resolving this issue. I hope that my noble friend accepts the reasons behind the need to resist this amendment, and that he will support the Government's commitment to look at this issue further. I call upon him to withdraw his amendment.

Lord Alli: My Lords, I agree with the right reverend Prelate the Bishop of Winchester-the first and the last time I shall say that in this debate-that the language on sexual orientation may be incorrect: we may be talking about sexual conduct, not sexual orientation. That is what I would like to see as correct in the Bill.

The right reverend Prelate asked whether there were any examples of this form of discrimination in the church. I shall give him two: Dr Jeffrey John, required to step down as Bishop of Reading in 2003 in spite of being celibate, and John Reaney, refused a job as a youth worker by the Bishop of Hereford in 2005 in spite of an agreement that he would be celibate. So there are examples, and we need to think about them carefully.

The Lord Bishop of Hereford: There was no such agreement with Mr Reaney to which the noble Lord refers.

Lord Alli: We will differ on that matter. The issue in Amendment 97E is about the wording regarding sexual orientation, and I would like the Government to look at that and see if they can do something about it.

The noble Lord, Lord Hunt of Wirral, asked a question about women priests. The noble Lord and I should maybe avoid that entire debate at this stage of Committee as I fear it could go on for some time, but I would say to him that to my knowledge there are no women priests, in any church, trying to conceal their gender for fear of discrimination. There is a significant difference between sexuality and gender.

I thank all those who have spoken on Amendment 119A. The majority of speakers, with the exception of the Benches Spiritual, reflected the mood of most people outside this House, where there would not be an objection to this. This is a permissive amendment. It does not seek to force the churches into taking any kind of action. It simply seeks to remove the prohibition. Most people would probably judge that to be a fair thing.

4 pm

Lord Tebbit: My Lords, the noble Lord is making an extremely interesting argument. Is it not broadly true that we have all decided that civil marriages should not take place in churches? Is that discrimination? If so, it seems a fairly sensible discrimination.

Lord Alli: My Lords, that is a point that confuses me; perhaps others can enlighten me. A civil marriage with a religious component is surely a marriage. If you

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want to marry with a religious ceremony, you are allowed to do so. It is called a marriage. If you wish to have a civil partnership and you want to share that celebration with people of your own faith and, more important, they want to share it with you, and their church permits it, this amendment would allow it to happen. There is a difference, but heterosexual couples have a solution because they can get married in church. That should satisfy both those needs.

This is not meant to be an attack on the central tenets of religion. The Quakers, liberal Judaism and the Unitarian churches want these provisions to allow them to start their debate.

I was a little disappointed by the responses of the Front Benches on all sides of the Committee. Maybe it is the way the usual channels work; maybe it is because this Bill has a pace; maybe we do not want to enter into these discussions at this stage in Parliament. Normally in the winding-up it is for the proposer to say, "I will read the Minister's comments carefully and reflect on them". I ask for the opposite. Will the Front Benches read carefully what the Committee is saying to them and think carefully about what they have heard, which has been a reasoned debate, with reasoned arguments from all round the Committee? Will the noble Baroness and the noble Lords on both Front Benches please think again? I hope that they will support this amendment. In the interim-

Lord Lester of Herne Hill: My Lords, the noble Lord has expressed disappointment with all the Front Benches, but will he accept from me-having, as it were, started the whole business of civil partnerships-that we fully support the object of his second amendment? We are concerned not with boring technicalities but with dealing with the difficult problems that the Minister has indicated so that we can achieve the results that he, and we, would like.

Lord Alli: I will certainly accept that, and with good grace. On the basis of that, I beg leave to withdraw the amendment.

Amendment 97E withdrawn.

Amendment 98

Moved by Baroness O'Cathain

98: Schedule 9, page 165, line 5, leave out "application is a proportionate means of complying" and insert "requirement is applied so as to comply"

Baroness O'Cathain: My Lords, it is a privilege to open a debate of such importance and interest to so many people. I am grateful for the support that I have received from many noble Lords for what we seek to achieve. In particular, I thank the noble Lord, Lord Anderson, the right reverend Prelate the Bishop of Winchester and the noble and learned Baroness, Lady Butler-Sloss, for co-sponsoring my amendments. Unfortunately, due to the timing of this debate, the noble Lord, Lord Anderson, has had to go to Strasbourg to fulfil his commitments to the Council of Europe. However, he supports the amendments.

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I intend to test the opinion of the Committee on these amendments. Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs. It would, for example, be appalling if the Labour Party could be sued for not selecting Conservative candidates and no one would want to see Greenpeace sued for refusing to appoint oil executives to its board of directors.

A belief in freedom of association demands that, even if we do not share the beliefs of an organisation, we must stand up for its liberty to choose its own leaders and representatives. That, in essence, is what this debate is all about. I accept that the Government intend to protect the freedom of churches to choose their own staff, but their wording does not mirror that intention. The exemption in paragraph 2 to Schedule 9 to the Bill allows churches to discriminate on the grounds of sex, sexual orientation and marital status when making appointments to key religious posts. An exemption along these lines has existed for more than 30 years. Some think that this is special pleading for the churches, but the principle of exemptions is widely accepted, not just for religion.

Paragraph 1 of this schedule is a general employment exemption that applies when being of a particular race, sex or other protected characteristic is a crucial requirement for a particular job. This makes perfect sense. My next point has already been mentioned today, but how would a rape crisis centre operate if it was forced to employ male counsellors? Beyond the employment sphere, Schedules 3 and 6 contain broad exemptions for insurance, political posts and for Parliament itself. Clause 193 even contains an exemption for sport, so the churches are not alone in needing limited exemptions from discrimination law in order to allow them to function normally.

It has been said that paragraph 2 is intended to be nothing more than a restatement of existing exemptions for religion. However, the Government have tinkered with the wording. Whereas the key phrase,

was previously undefined, the Government decided to insert a new definition, contained in paragraph 2(8). In addition, whereas previous legislation did not include the qualifying word "proportionate", that word now appears twice in paragraph 2. If the Government's intention was to maintain the status quo, as they have said continuously since April 2009, why not use the same wording? After all, it has been in use without difficulty since 1975, when it was incorporated in the Sex Discrimination Act. By tinkering, they have caused enormous concern among religious groups. It is essential that the wording is returned to what it was. All the religious groups and their lawyers say that the result of my amendments would be the retention of the status quo. That is what we want-nothing more and nothing less.

Many noble Lords will have received briefing in support of Amendments 98, 99 and 100 from the Church of England and the Roman Catholic Church. Support, however, goes much wider than that. A letter pleading specifically for all three of these amendments was sent to the Government in November last year,

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signed by numerous religious groups, including the Hindu Council UK, Sikhs in England, the Jain Network, the Muslim Council of Great Britain, the Fellowship of Independent Evangelical Churches and many other Christian groups. These are the very groups that the Government intend should be protected by paragraph 2. These are the ones whose religious liberty is now at stake. If we get this wrong, these are the ones who will have to pay the legal bills to defend themselves in court.

The religious groups, particularly the Church of England and the Roman Catholic Church, have made representations to the Government on this issue since the Bill was published in April last year. Until two weeks ago, the Government denied that paragraph 2 caused any problems and refused to budge. Now, at the 11th hour, they have admitted that there is a problem and have tabled Amendment 99A. It is a slight improvement, but they still have not got it right. For a church post to be exempt, paragraph (b) in Amendment 99A requires proof that the post exists to promote or explain the religion. The Church of England briefing that we all received last week says that paragraph (b) leaves,

The briefing states:

"Although Ministers may say that 'exists to' does not mean 'exists only to', our legal advice is that that does not reflect the natural meaning of the words and that [subsection] (b) as drafted would require promoting or representing the religion, or explaining its doctrine, to be the defining characteristic of the job. That is highly problematic because many roles in the Church of England that involve promoting or representing the religion could not simply be described as 'existing' for such a purpose. Many posts require their holders to carry out multiple functions, some of which would involve promoting or representing the Church, while other functions of the same post would not".

The briefing concludes that the government Amendment will leave the churches worse off than under existing law.

This is very serious. We cannot accept the government Amendment. We have been forced into the position of having a vote at Committee because of government Amendment 99A. The doctrine of pre-emption means that I could not bring my own amendments back at Report if Amendment 99A went through today. We must vote to decide the issue now. I wish the Committee to consider all three of my amendments as a group. They are a package. They seek to maintain the status quo by taking out the changes inserted by the Government. Amendments 98 and 99 would remove the new proportionality tests. Amendment 100 would remove the new definition of organised religion. Amendments 99 and 100 are therefore consequential on Amendment 98. The Minister may take a different view on what is consequential. I am sure that she will explain her view when she speaks. For my part, I invite the Committee to regard Amendments 98, 99 and 100 as a package and to vote accordingly.

The other package on offer today is the Government's Amendment 99A. Due to the fact that it offers an alternative definition of organised religion from the one already in the Bill, it also requires Amendment 100 to go through. It seems a little complicated, but a

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single Division will decide the matter: if the Committee supports Amendment 98, it is rejecting Amendment 99A; if the Committee rejects Amendment 98, then the Government get their way and Amendment 99A goes into the Bill.

My package of amendments represents the legal status quo, which is supported by the Church of England, the Roman Catholic Church and others. The Government's package represents a change in the wording of religious exemptions that is not supported by the churches. I beg to move.

4.15 pm

The Chancellor of the Duchy of Lancaster (Baroness Royall of Blaisdon): My Lords, with permission I will speak to government Amendment 99A, but I will of course respond to all amendments at the end of the debate. Amendment 99A revises the definition of employment,

in paragraph 2(8). This provision has already been the subject of much debate in both this House and another place. Our amendment seeks to address concerns that have been expressed to us by the churches and others about the terms of paragraph 2(8). I have not tabled this Amendment because I believed that there was a problem with the original drafting. However, having listened carefully to the debate in this House and to representations from many members of the churches, we recognised that there were concerns about the need for further clarification. That is precisely what this amendment seeks to do-to clarify, not to change.

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