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The definition in paragraph 2(8) was not tinkering; it was introduced because responses to the consultation on the Government's proposals for the Bill highlighted some confusion about when the existing exceptions can lawfully be used. We also received examples of cases where one of the existing exceptions-Regulation 7(3) of the 2003 regulations-appeared to have been misused, such as in relation to the finance director of a church.
The Government's intention is not and never has been to narrow the scope of the existing exceptions, as the Solicitor-General made clear on a number of occasions in another place. Paragraph 2(8) is designed simply to reflect how my noble friend Lord Sainsbury of Turville described the scope of Regulation 7(3) when replying to the debate on the 2003 regulations in this House on 17 June 2003. He said:
"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".-[Official Report, 17/6/03; col. 779.]
Clearly, many people, including some noble Lords, remain unpersuaded that paragraph 2(8) reflects this description. They maintain that it narrows the scope of the existing exceptions. In particular, they are concerned that it does not cover people employed by churches in representational roles and could even rule out most priests because of the amount of time that they may spend on activities that do not directly involve ritualistic or liturgical practices, for example. That point was well made by the most reverend Primate at Second Reading.
Ministers have listened to those concerns and Amendment 99A seeks to address them. The wording of paragraph 2 of Schedule 9 reflects very closely that used by my noble friend Lord Sainsbury to describe the very narrow range of employment covered by Regulation 7(3) of the 2003 regulations. I should explain that,
That is the expression used in paragraph 3 of Schedule 9, which allows, for example, a care home run by a religious foundation to require employees to be of a particular religion or belief in certain circumstances. However, employment,
To remove any shadow of a doubt, the revised definition that we are proposing refers to them explicitly. The words "wholly or mainly", which it was claimed necessarily implied some kind of arithmetic or quantitative test, have been removed.
The small number of posts outside the clergy to which paragraph 2 applies are those that exist to promote or represent an organised religion or to explain the doctrines of the religion. I should like to clarify that this does not mean that the post must involve only one or more of those activities, but one or more of them must be intrinsic to the post. By "representing" the religion, we mean acting or speaking for, and with the authority of, those in leadership within the religion. We therefore intend senior employees with representational roles, such as the secretary-general of the General Synod and the Archbishops' Council of the Church of England, to be within the definition. A further example is that of a senior lay post at the Catholic Bishops' Conference charged with acting on behalf of bishops when contributing to public policy developments. These are both roles where the emphasis is more representational than promotional. There will be similar such roles in other organised religions. An example of a post that exists more to promote the religion is that of a missionary working for a church in this country. A church youth worker who primarily organises sporting activities would be unlikely to be covered by the exception. However, a youth worker whose key function is to teach Bible classes probably would be covered, because explaining the doctrines of the religion would be intrinsic to the role.
Because the exception applies only to a very narrow range of posts, all roles will need to be closely examined to determine whether or not they fall within the scope of the exception. An organised religion that applies in relation to a role a requirement related to sexual orientation, for example, must be prepared to justify this on a case-by-case basis. Whether or not a particular role exists to promote or represent the religion or explain its doctrines will depend on the purposes of the role and the nature of the work that it involves.
It is certainly not our intention that the exception should apply to employees such as administrative staff, accountants, caretakers or cleaners. Whether or not an applicant for the job of church bookkeeper is, for instance, married to a divorcee should not be a reason not to employ the person. In addition, the exception would not apply to most staff working in press or communications offices, although senior and high-profile roles within such offices that exist to represent or promote the religion would probably be within its scope. The revised definition that we propose also covers a case where a post to which the exception applies has just been created and the first person to hold it has yet to be appointed.
Amendment 99A would provide more clarity and greater legal certainty about the scope of the exception-for organised religions themselves, for the people whom they employ and, in the event of legal proceedings, for the courts. I commend it to the Committee.
I will add some information about the reasoned opinion. Last November, the European Commission delivered a reasoned opinion to the Government on two aspects of our implementation of the European directive underlying the 2003 sexual orientation regulations. We had previously satisfied the Commission's concerns over a number of other aspects of our implementation of the directive. The reasoned opinion was apparently disclosed by the Commission, without the Government's prior knowledge, and Mark Harper in another place referred to it during the Bill's Report stage. We have asked the Commission to explain this apparent unauthorised disclosure. I take this opportunity to make it clear that we have not, as asserted by Mark Harper and others, informed the European Commission that the Bill will amend Regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, so as to bring this into line with the directive. That was incorrectly stated in the reasoned opinion.
Issuing a reasoned opinion is one of the formal steps in infraction proceedings, which the Commission can bring where it considers that a member state has incorrectly transposed a directive. The generally agreed position is that reasoned opinions are confidential between the Commission and the relevant authorities in the member state concerned. If the Commission is not satisfied with the member state's response, the case could be referred to the European Court of Justice. That is why I cannot say any more about the reasoned opinion in question, to which we will be responding in due course. However, I thought that it was important to set out the Government's views on that issue.
The Archbishop of York: My Lords, I want to explain why I shall be supporting Amendments 98, 99 and 100, moved by the noble Baroness, Lady O'Cathain, in preference to Her Majesty's Government's Amendment 99A.
This debate has the potential to be one where the competing arguments pass each other like ships in the night. We do not want it to be like the radio exchange recorded between an American naval ship and Canadian authorities off the coast of Newfoundland in 1995. The Americans said, "Please divert your course 15 degrees to the south, to avoid collision." The Canadians replied, "Recommend you divert your course 15 degrees to the
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It is important, as we make up our mind on the choices before us, that we are clear what they are. Are the disagreements ones of principle or are they about how best to reflect agreed principles in how the Bill is drafted? Arguing about drafting may be less exciting than arguing about principles, but we are a legislative Chamber. When important issues concerning individual rights and religious freedom are at stake, we have a duty to ensure not only that the principles are right, but that the drafting is clear.
There are those who struggle with the concept of allowing any exemptions for religious organisations from provisions relating to discrimination in the field of employment. But the argument is simple. Religious organisations, like all others, must be able to impose genuine occupational requirements in relation to those whom they serve. There are many jobs that you can do for the Church of England without necessarily being an Anglican or indeed a Christian. But for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case.
Even within religious organisations, certain requirements about marital status or personal conduct may be different between roles. An obvious example is that the Roman Catholic Church insists that priests and bishops are male and unmarried. The Orthodox Church has the same requirements, except that it will ordain as priests, although not bishops, those already married. The Church of England allows women to be priests but not bishops. We allow both to be married. We also impose restrictions on marriage after divorce, cohabitation and same-sex relationships. These touch on matters-gender, marital status and sexual orientation-that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent "protected characteristics" that can form the basis of discrimination claims.
By contrast, churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do; between what we believe and how we conduct ourselves; between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. Noble Lords may believe that Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics. But if religious freedom means anything, it must mean that those are matters
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I am not determining a point of law, but seeking to restore tranquillity and a spirit of moderation, magnanimity and meeting the other half way. Aristotle, in his Nicomachean Ethics, says that magnanimity is that which is just and sometimes that which is better than justice: it corrects the law when that is deficient because of its generality.
In all that they have said, Her Majesty's Government have sought to provide assurances that they do not want to go down the road of putting the law and conscience into inevitable collision. I welcome that. However, if that is the case, the onus is on Her Majesty's Government to demonstrate why any narrowing of the provisions in existing legislation under the Sex Discrimination Act 1975 and the 2003 sexual orientation regulations needs to be made. There is no doubt that paragraph 2 of Schedule 9 to the Bill would constitute a significant narrowing of the present law, for the reasons that I set out at Second Reading. When I heard the Leader of the House describing what may be exempt, I said to myself, "My gosh, here comes a barrage of endless tribunals". The Government's Amendment 99A goes some way, but not far enough, to meeting the objections.
The wording of Amendment 99A is either a departure from those intentions or fails to satisfy them. We have gone from posts outside the clergy, including those who exist to promote and represent, to posts that exist only to promote or represent.
Again, the question is about preserving the status quo and about not introducing legal uncertainty. The 2003 regulations did not impose a proportionality requirement. That was a deliberate policy decision on the part of Her Majesty's Government. Now, on the eve of this debate, it is suddenly being suggested that the words in the Bill are needed to avoid legal challenges from the European Commission. This is a very puzzling claim when Ministers have insisted all along that the Bill does not narrow the exemption provided in the 2003 regulations. It is hard to see-
Lord Lester of Herne Hill: I am very sorry to interrupt the most reverend Primate, but what he has just said is not the case. The opposite is what the Minister has said, that this was not done in any way to comply with the EU Commission's opinion. This was magnanimity shown to the church.
The Archbishop of York: I am still puzzled, given that in 2004 the Government successfully defended the compatibility of the regulations in European law against a challenge from Amicus in the High Court. The judgment was given on 26 April 2004, paragraphs 88 to 128.
Noble Lords are entitled to some explanation as to why the unpublished opinion of officials reached in private in Brussels is to be preferred-that is my view-to the Government's own previous view that was sustained by a High Court judge after all the arguments had been tested in open court and a judgment produced running to some 58 pages. In the High Court, Her Majesty's Government had argued that it would not be right for courts or tribunals to make judgments about questions of doctrine. Her Majesty's Government were right to take the view in 2003, and there is no good reason for them to take a different view now that they have the High Court judgment on their side.
So why are Her Majesty's Government now dissatisfied with their own very recent handiwork? Where are the examples of actual abuses that have caused difficulties? Where are the court rulings that have shown that the law, as it is, is defective? As they say, "If it ain't broke, why fix it"? The truth is that there are none because the status quo has been working perfectly satisfactorily. The earlier balances were struck by Parliament very carefully. The right course is to leave them exactly as they are. That is what Amendments 98, 99 and 100 will achieve.
Her Majesty's Government's Amendment 99A would introduce fresh legal uncertainty with unnecessary arguments over whether "exists...to" means that promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary components. Noble Lords know where I am going; principles matter and drafting also matters. For this reason, I support the amendments of the noble Baroness, Lady O'Cathain.
Baroness Butler-Sloss: I have added my name to Amendments 98, 99 and 100. In the same way as the noble Baroness, Lady Campbell of Surbiton, I support religious freedom, which is why I supported Amendment 119A and I now support these amendments.
In the exemptions provided by the Employment Equality (Sexual Orientation) Regulations 2003, regulation 7(3), which is highly relevant to today, did not include the express requirement of proportionality, although regulation 7(2) did require it. Those exemptions, including the absence of proportionality, were challenged in the High Court in the Amicus case which has just been referred to by the most reverend Primate. Not to have the requirement for proportionality was upheld by the High Court judge.
The introduction of the word "proportionate" in the two regulations inevitably changes the legal position. The word "proportionate" must mean something, and something more than the previous position because it was not there before-despite what seems to be the erroneous view of the Government, that this is exactly the same. Once you put a new word in it must be different. If this paragraph is challenged in the courts as a matter of interpretation or construction, a judge
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The effect would be to cause major problems for churches. There might be a situation where a church met the organised-religion test but could still lose a legal challenge in a particular case if a litigant argued that their action was disproportionate in his or her situation. That is not just my opinion-although I was once a judge, I do not see myself as an expert-but I have been provided with very important advice by James Dingemans, Queen's Counsel, which supports exactly what I have just said. He has also raised an interesting point about the status of celibacy of priests of the Roman Catholic Church and whether under the new paragraphs of Schedule 9 the church might be challenged as not being a proportionate means of complying with the requirements of that church to have celibate priests. It is a very interesting idea. I do not know whether anyone from the Roman Catholic Church feels like expressing a view on that but it is raised again by James Dingemans, Queen's Counsel. This is a controversy stretching over nearly 1,000 years so these are not uncharted waters, but it would be odd if it came up under the word "proportionate" in the Equality Bill.
The noble Baroness, Lady Royall, quoted the noble Lord, Lord Sainsbury of Turville, who was speaking to the 2003 regulations. Perhaps I may add to her quotation of the noble Lord because he said in relation to the exemption in Regulation 3 admitting the test of proportionality:
I turn to government Amendment 99A. It continues to restrict the rights of religious groups to employ those who will be in sympathy with them and their strongly held religious convictions. However, through the Minister, the Government say that Amendment 99A clarifies the position. In my view, it does exactly the opposite for this reason: one has to ask what does the word "exists" mean? Is it intended to require the person selected to fill a post which solely exists to promote or represent the religion or partly exists for that purpose? The Minister says that it partly exists. I am not certain that that is the way the present wording will be seen if the matter gets to court.
I shall give an example. The Minister spoke of a youth worker and so shall I. A youth worker may be employed to teach Sunday school but he may also be employed to drive the parish bus for the youth group. If the parish employs him to drive and driving is as important in one sense as teaching on a Sunday-he teaches one day a week but drives for three or four days a week-is he in an employment that exists for the purpose of promoting and so on, according to the words of Amendment 99A? I think there is a real doubt and, therefore, a real possibility that the use of the word "exists" might precipitate court proceedings, which would be an expensive and regrettable position
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"We are writing from Ellel Ministries International to ask if you'd kindly consider the implications of the Equality Bill to a Christian ministry such as ours. We have four centres, we help people in their time of need, we provide free Christian counselling, in the form of healing retreats, to the suicidal, the depressed, the traumatised, the abused and to the broken. If this Equality Bill became law, we'd be unable freely to employ people who are best qualified to bring the appropriate level of help to those in need".
It does not sound as though this is primarily Christian teaching. This is primarily helping, in a Christian organisation, those who are suicidal, depressed or traumatised, and I suspect that they are right, that they would not be able to have someone of their particular religious persuasion.
This is probably a commendable effort by the Government to clarify what has happened, but it has not had the effect of clarification. It will have, possibly unintentionally, the effect, if it is passed, of restricting the rights of religious groups to work with those of the same views, holding the same religious convictions, and it will, if passed, create the confusion it seeks to avoid. Therefore I, too, support Amendment 98.
Lord Pilkington of Oxenford: My Lords, I want to widen the debate somewhat, because it touches the very roots of democracy in society. It has been a fundamental principle of the democratic state, certainly over the last 100 years, that independent corporations within the state have a freedom and enjoy a freedom. Churches and faith groups are independent corporations. Their life does not spring from the state, but from within their own communities. Freedom, for them, means the right for their members to follow the rules of their faith, provided it does not offend decency or public order.
Even in a different age, less democratic, more intolerant than our present age, this principle was observed. In 1795, the narrow Protestant Parliament of Ireland gave £8,000 to the Catholic Church to build the seminary at Maynooth. The English state, when the Union of Parliaments occurred, continued with this grant, which rose to about £26,000 a year, a lot of money in the early 19th century. The Bill alters all this and we are in grave danger of using the ideology of equality to question the demands that faith communities make on their pastors and followers.
Traditionally, faith schools-the essence of faith in many cases: the Roman Catholic Church almost bankrupted itself to create its schools-demanded that their staff followed the practices of the faith that the school represented. This was certainly the case when I was briefly in charge of a parish in the early 1960s, when teachers in local schools were expected to respect the faith that the school represented and on which the faith had spent large sums of money. The Bill seems to me to restrict this right to employ members of their creed and those who practise their moral code
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