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I return where I began: that hard-fought right of independent corporations to express themselves is an important element of what we mean by freedom in the state. Dictators always restricted these rights of churches, trades unions and more, and this, in a funny way, is what we are doing at the moment in the interests of ideology.

In France, savage anticlerical legislation was passed in 1905. The result was 50 years of conflict-fifty years in which charitable activities were restricted-and we see a faint sign of how that could occur with us in what has happened to the Catholic Children's Society. It is a paradox that in the early 19th century the narrow, intolerant Protestant minority was prepared to build a Catholic seminary and that our generation, which is supposedly generous and understanding, is actually restricting the rights of church bodies and inaugurating conflict that can only do harm. I beg noble Lords to support the amendment.

4.45 pm

Baroness Turner of Camden: My Lords, these amendments deal with the requirements which an employer with a religious ethos may demand of his employees. Clearly, the Bill does not intend that an employer with a religious ethos should be able to require that all employees, irrespective of the job for which they are employed, must be adherents of the employers' religion. It does, however, provide for certain exceptions. It is clear that the Government's amendments in this group are intended to set out clearly that an employer may not insist on such a requirement for most jobs, only for those that relate directly to the purposes of organised religion. Amendment 99A sets this out very clearly, and I support it; it clarifies wording that is not as clear as some of us would like.

I oppose Amendments 98 and 99. The Bill allows an employer with a religious ethos to employ people with protected characteristics only if it is,


The amendments, however, seek to remove the words "proportionate means". This is not acceptable. It is an attempt to interfere with the rights of others, which the Bill intends to protect. It is unfair, unjust, and more likely to lead to conflict than anything else. Do the movers of the Bill really see any virtue in being disproportionate? Of course not. The Government have attempted to meet concerns that have been voiced by certain religious groups, and I therefore hope that they will insist on maintaining the wording.

Lord Davies of Coity: My Lords, noble Lords might recall that at Second Reading and on the second day of Committee I expressed my fear that the Christian church was being marginalised in this country. I believe that the Government understand this, hence their own amendment, but like other Christians I believe that their stance does not go far enough. I shall therefore

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vote for Amendment 98, moved by the noble Baroness, Lady O'Cathain, and supported by the right reverend Prelate the Bishop of Winchester and my noble friend Lord Anderson. If the amendment fails to be accepted, I will not oppose the Government's amendment simply because half a loaf is better than no bread at all. It was my Christian faith that guided me into the trade union and political movements and that led me to be for the abolition of the capital punishment long before it was abolished in this country. My support for my Labour Government is second only to my Christian faith. The standards and morals of the Christian church makes this country a much better place, and I shall always oppose any measures that seek to marginalise the Christian church.

Lord Lester of Herne Hill: I hope in this debate that I am the lighthouse and not the aircraft carrier, but we will see. Before I come to the law, I want to mention the episode of the noble Lord, Lord Sainsbury of Turville. I think it was I who pressed him because I was concerned that the then regulations were too broad and would allow a religious body to discriminate against a lesbian cleaning lady. That concern led to the judicial review in the Amicus case and Mr Justice Richards, as he then was, giving a strict interpretation of broad regulations indicating that they could not be read in a loose way. I say that to avoid some misunderstanding which has been expressed about that case and his judgment.

Amendments 98 and 99 would remove the principle of proportionality. That is a general principle of European law by which the United Kingdom is bound. The amendments would remove that principle as regards differences of treatment made to comply with the doctrines of a religion. As has been said, there are a number of exemptions for religious requirements in paragraph 2 of Schedule 9 relating to sex, marriage, sexual orientation and so on. For example, in certain circumstances it is permissible, for the purposes of religious employment, for a difference of treatment to be made in accordance with a requirement either not to be of a particular sex or relating to sexual orientation-quite right, too.

Under the Bill, these exemptions must be applied in a manner that is a proportionate means of complying with the doctrines of religion. Removing proportionality here, as these amendments seek to do, would mean that any religious organisation could implement the requirements without a sense of proportion and in breach of the general principle of European law. In other words, the organisation could lawfully use its powers in a way that was excessive. That would inevitably lead to complex and costly litigation, as happened in the Amicus case, in our and the European courts, the outcome of which would be to require the principle of proportionality to be applied as part of the law of the land, whatever the movers of these amendments and the seven Bishops now present may say. It is the law under European law and it is the law of the land. Proportionality is required whether they like it or not.

In my view-James Dingemans QC takes controversial views on some of this in other contexts, with great respect to him-Amendments 98 and 99 are outwith

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the scope of Article 4(1) of the EU framework directive, while Amendment 100, in opposition to government Amendment 99A, would also clearly be incompatible with European Union law. In view of the way the debate has gone, it is important to have regard to what is meant by proportionality. The European principle of proportionality is at the heart of the Bill. It requires a fair balance to be maintained between rights and freedoms where they compete or conflict with each other. The principle of proportionality is inherent in European Union law, European convention law and our own law. It applies to our legal system via the Human Rights Act and specific legislation such as in the Equality Bill. That principle is allied to the European principle of legal certainty.

Lord Pilkington of Oxenford: Would the noble Lord explain how other members of the European Community-France, for example, and Germany to some extent-restrict teaching in their faith schools to members of the faith and the practice of the faith? How have they avoided the European Court?

Lord Lester of Herne Hill: I am not addressing the issues about faith schools at this stage and it is confusing to do that. I promise that we will come to that. But I am keen, and it is very important, to stick to the issues with which we are now concerned. Faith schools are another difficult matter to which we will come later. In addition, the European principle of legal certainty requires that civil rights and obligations, such as the right to equal treatment without discrimination, be clearly stated and that the exceptions to the rights also be clearly stated so that the law is intelligible and accessible. We, and the Government, have to try our best to meet the principles of proportionality and legal certainty as law makers.

A restriction on a right or freedom has to be a proportionate interference. There must be a reasonable relationship or proportionality between the means employed and the aim pursued. The European courts and our courts have made it clear that the means used to impair the right of freedom must be no more than is necessary to accomplish the legitimate aim. Here, we are concerned with the fair balance required between the fundamental right to respect for one's private and family life without discrimination, and the fundamental right to freedom of thought, conscience and religion. Those rights are protected by Articles 8, 9 and 14 of the convention and by EU equality law.

A core aspect of self-determination and individual autonomy is the protection conferred by Article 8 of the convention on sexual relations and what are called "proclivities", sexual orientation and identity, all of which are part of the core aspects of an individual's private life. For example, decades ago the archaic law treating homosexual conduct as an offence, even if conducted in private and between mature and consenting adults, was held to be contrary to Article 8, and we had to change our law.

The Bill protects gay and lesbian individuals against discrimination. But, like the regulations it replaces, it includes necessary exemptions to accommodate the fundamental right to freedom of thought, conscience and religion, exceptions well recognised in the EU framework directive. In other words, the right to be

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protected against sexual orientation discrimination is not absolute. The same applies to freedom of conscience and religion. There are no absolutes here.

The Strasbourg court has made it clear that the controlling doctrine is that of proportionality. A classic example was the case about the bar on homosexuals in the Armed Forces. Religious and other beliefs, and convictions, are part of the humanity of every individual, including atheists, agnostics, sceptics and the unconcerned. It is only the manifestation of religion or belief that may be subject to prescribed limits. That reflects the fact that the way that beliefs are expressed in practice is what can impact on others.

Despite the protestations made by senior clerics, including those on the Benches here, I believe that the measures in the Bill accommodate the reasonable needs of the churches and other religious organisations to manifest their beliefs and to practise their faith in accordance with their beliefs, subject to the overriding requirement of proportionality. I find it astonishing and deeply depressing that the right reverend Prelates should find the principle of proportionality-a principle which is deep in Christian ethics-to be a principle to be removed from this Bill. I am, frankly, appalled that that should be the position.

Noble Lords: Oh!

Lord Lester of Herne Hill: I believe that the Bill strikes a fair balance and that the removal of the principle of proportionality would be clearly contrary-

Baroness Butler-Sloss: Does the noble Lord see any difference between the wording in Regulation 7(3), which did not have proportionality, and the word "proportionate" in the amendment.

Lord Lester of Herne Hill: Of course there is a difference in the wording. But in each case, under the regulations and now, the European principle of proportionality has to be complied with. Therefore, it is highly beneficial that the law now makes it clear in the current wording, which is why the principle of proportionality is clearly spelt out. It does not change anything in existing law, since it was always the case, as the Amicus case demonstrates, that any exception must be strictly construed in accordance with European law.

We have been here before, in 1998. I am not sure who else remembers what happened during the passage of the Human Rights Bill. At that stage, amendments were approved in this House, as could happen today, to give specific protection to religious beliefs because of concern among the churches that the Bill might force them and their members to engage in acts contrary to their religious principles, for example in relation to whom they would marry in a church or whom they would employ. Those amendments, as were subsequently shown, were wholly inappropriate and unnecessary. By a concession made to the churches, however, Section 13 of the Human Rights Act was included, which states:

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5 pm

Lord Campbell of Alloway: Those amendments were moved by me to get religious toleration an exclusion from the very sort of position that the noble Lord is talking about. I withdrew the amendment because an arrangement had been made with Lambeth Palace. I never saw the arrangement; I do not know what it was, but I withdrew the amendment, so it was never in fact enacted.

Lord Lester of Herne Hill: My memory is normally terrible, but I think what happened was that the House did approve them, the Commons disagreed and then by compromise Clause 13 was put in. Perhaps that is beside the point at the moment. The point I am making is that all of this happened then. A concession was made, there has been no subsequent case in which the concession was ever needed, because in practice the Human Rights Act did not affect the churches, but the same kinds of concerns were then expressed.

The Equality Bill gives very strong protection to the rights and freedoms of the churches and religious organisations and, if I can take up the word used by the most reverend Primate the Archbishop of York, I agree with him that magnanimity is of the essence. The Government have in fact, although you would not think so from some of the responses, been magnanimous in the way that they have included Amendment 99A. I am not going to go over the ground on this amendment, but I would like to explain about the framework directive because it is really important. UK law has to implement the directive and it is important for the Bill to ensure full compatibility. In my view, it does so if it is amended as the Government propose and if its present text is approved.

The Bill and Amendment 99A maintain a fair balance between conflicting rights and freedoms and meet the obligations under the directive. In the Amicus case, the High Court held that Regulation 7(3) of the old regulations does not interfere with rights under Article 8(1) of the convention and that it strikes a fair balance. As I have explained, however, the problem about Amendments 98 and 99, which I very much hope will not be approved today, is that they overreach in seeking to widen further the rights of churches and religious organisations to discriminate because of someone's sexuality. They are not compatible-I would love to know whether the Minister and her legal advisers agree with this-with the UK's obligations under the directive.

You will be glad to know that I am not going to quote the directive. It goes into great detail. The current wording reflects current law. The Government amendment is even clearer and faithfully reflects the scope of the exception currently in the old employment regulations. I am glad that the Minister has clarified that Amendment 99A would not permit sexual orientation discrimination against those involved in youth work. I consider that Amendment 100 would allow, although that may not be the intention, arbitrary and disproportionate discrimination by religious organisations and therefore should not be accepted.

The Lord Bishop of Winchester: The more I listen to the noble Lord, the more I find, as was the case when I listened to the noble Baroness, Lady Turner, that I am

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glad that my name has been added to the amendments tabled by the noble Baroness, Lady O'Cathain. It simply is not true to say that those on this Bench have no interest in or respect for proportionality, and of course that is engaged in all this. I have a vivid memory of conversations I had in my previous post with a Muslim cleaning lady in a voluntary aided church school in the middle of Stoke-on-Trent. She was entirely properly engaged there and, rather intriguingly, she was extremely impressed with the Christian religion as she found it enunciated in the school that her children attended. But it was entirely right that she should be an employee of the school in that role.

It is of course true that proportionality is a requirement in European law, but as I understand it, the 2003 regulations, as Her Majesty's Government successfully argued in the Amicus case, themselves strike a proportionate balance and there is no need for the legislation itself to employ the term in order to achieve proportionality. Indeed, as the noble and learned Baroness, Lady Butler-Sloss, so carefully drew out-it is a privilege to be among those who support the amendments with her-adding the word "proportionate" now is likely to change the interpretation that the courts will make of this legislation. It will require the courts to inquire into the precise nature of the particular religious doctrines in order to discover what is the minimum necessary to comply with them. I am advised that the existing 2003 legislation already complies with EU proportionality requirements without giving rise to legal wrangles of this kind about doctrines. That seems to be common sense and sounds to me, although I am not a lawyer, like responsible law.

The question that has not been adequately answered is why the Government, having said all along that they are consolidating and replicating-we have heard that word this afternoon-find themselves introducing this fresh material when, again so far as I understand it, they won the case in the High Court which alone could justify bringing the word "proportionate" into the sections that Amendments 98 and 99 seek to remove it from, and thus go down the road of Clause 2(8) as it appears in the Bill. As others have said, the beauty of Amendments 98 and 99 is that they restore the status quo, which we believe to be entirely defensible. I am not convinced by the noble Lord's language about the magnanimity of the Government. On the contrary, I reacted with a real pang of regret when the Minister said that she still sees no problem with Clause 2(8), but perhaps it was important to "clarify but not change", to use her words. However, it is precisely because the subsection is so profoundly objectionable to us that the only way forward is its removal, and here I bring into play the considerations enunciated by the noble Lord, Lord Pilkington. I shall not go into the detail so beautifully laid out by the noble and learned Baroness, Lady Butler-Sloss, which makes it clear why we reckon that government Amendment 99A will make for a great many more problems than removing the amendments altogether.

Lord Lester of Herne Hill: Is the right reverend Prelate aware that Article 4(1) of the framework directive states specifically that the characteristic in question must constitute,

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What is wrong with putting that obligation expressly into the Bill so as to conform fully with European law?

The Lord Bishop of Winchester: Obviously I am aware of the material from which the noble Lord has quoted, but it remains my contention that, granted that the Government's primary intention as I understand it is to consolidate legislation into a single Bill, to draw in a fresh use of that word at this point is likely to do a great deal more mischief than good. That said, it would be rash-

Lord Wedderburn of Charlton: I hesitate to interrupt the right reverend Prelate again, but surely the word "proportionate" is already implied by European law. Therefore, for our statute to use the same word is merely accepting a European legal doctrine. Where is the freshness?

The Lord Bishop of Winchester: The freshness is because the Government have all along said, although we have not accepted it, that they are consolidating and replicating, rather than narrowing, the legal provisions under which we act.

It is important at this point in the debate to revisit two areas. The first is why these questions are of such importance to churches, religious organisations and charitable organisations with a religious ethos. For centuries, religious organisations and churches have employed lay people in senior administrative and pastoral roles. The question that the noble Baroness, Lady Butler-Sloss, raised from Ellel Ministries is an important one-namely, to check that such organisations would not fall foul of this legislation if they were seeking to employ people necessary for the working of their organisation. That was the fundamental point made by noble Lord, Lord Pilkington. Churches need to be able to appoint members, either of their own particular church or of some other, who are of good standing and whose ways of living and behaving advocate and credibly represent, rather than undermine, the Christian faith and the objectives of the organisation concerned-not, as I have already said in relation to the word "proportionate", cleaners or people doing the books or whatever, but people representing those organisations according to one bullet point or more on their job description.

My anxiety is that, notwithstanding a huge amount of work done by the Roman Catholic Church, the Church of England, the Evangelical Alliance and a range of other organisations, we still seem not to be getting across the sheer reality in so many churches. With youth workers, for instance, many a parish in my own diocese employs lay people as part of the paid staff under the leadership of the minister to work with students, families and children. Listening to the noble Baroness just now, I had the vision either of a whole new department of state responsible for vetting all these contracts to see whether these people were a genuine occupational requirement, or of the churches being burdened with endless lawsuits of one kind or another. I have a lay assistant, not a chaplain, who represents me in a whole range of ways; his job description notes that he does so. Is it not entirely reasonable that he should be a Christian of good standing whose life

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tallies with his Christian profession and who is therefore able to represent me, not someone living in some quite other way so as to make his representation impossible and to undermine my own activity?

Churches, religious organisations and charities have senior lay staff, one element of whose responsibility is to represent the convictions, character and vision of their organisations. I was glad that the noble Baroness mentioned some of those. It is a matter of great importance to us. The same is true of the senior staff of the Evangelical Alliance. An English diocese in the Church of England has a diocesan secretary-the head of its diocesan administration-who is almost always lay. It would be impossible for us to work with that woman or man, representing us widely in a whole series of contexts-

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