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It is important to note that the proportionality test appears explicitly throughout the Bill. Removing the test from paragraph 2 of Schedule 9 would put this provision out of step with other exceptions for occupational requirements in Schedule 9 and other areas in the Bill where a test of proportionality applies. It is unclear what the courts or tribunals might infer from a difference of approach in this case.
I come back briefly to the reasoned opinion from the European Commission. I am very grateful to the right reverend Prelate the Bishop of Exeter for his acceptance of the Government's position that I set out earlier. I hope that Her Majesty's Official Opposition will also accept that we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, to bring this position into line with the directive. That was incorrectly stated in the reasoned opinion.
Opinions between the Commission and the relevant authorities in the member states concerned are confidential. We of course have to respond to the European Commission. It would not be appropriate for me to state everything that was in our response to the Commission, but the Commission has wrongly accused the Government of saying something. Therefore it would be entirely natural if the Government were to make representations to the Commission, pointing out that we had been wrongly accused. Perhaps I may put it in that way.
I was asked why we are narrowing the scope of the existing exceptions by including a proportionality test. It is true that the existing exceptions, which paragraph 2 of Schedule 9 replaces and harmonises, do not include
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The noble and learned Baroness, Lady Butler-Sloss, suggested that by adding proportionality the Government meant that the exception meant something different. Making the test explicit simply clarifies the existing law, reflecting the approach adopted in the Amicus case. That is also the view of the Joint Committee on Human Rights.
I turn to Amendment 100, tabled by the noble Baroness, Lady O'Cathain, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson of Swansea and the right reverend Prelate the Bishop of Winchester. This amendment is necessarily consequential on government Amendment 99A, but of course the noble Lords wish to remove the definition in paragraph 2(8) of employment,
Removing the definition would reduce legal certainty and be a recipe for confusion. Organised religions and people whom they employ or who apply to work for them would not know for certain to which posts a requirement related to sexual orientation, for example, could lawfully be applied. It would also increase the risk of the exception being misused. In the event of legal proceedings, employment tribunals and the courts could not be certain as to which roles Parliament intended the exception to cover.
The noble Baroness, Lady O'Cathain, asked whether the Labour Party would expect Greenpeace to employ oil executives. This exception is not about the ability of churches or religious organisations such as charities to require employees to share their faith. There are separate exceptions for this in paragraphs 1 and 3 of Schedule 9. This particular exception allows churches and mosques to discriminate in limited circumstances because of sexual orientation, marriage, civil partnership and gender reassignment.
In response to questions on the Government's amendment, I am grateful to my noble friends Lady Turner of Camden and Lord Graham of Edmonton for their support. The noble and learned Baroness, Lady Butler-Sloss, asked what "exists" means. It means the same as what my noble friend Lord Sainsbury meant when he used that expression during the passage of the 2003 regulations, which the High Court in the Amicus case interpreted. As I said earlier, the activity must be intrinsic to the role, but it need not be the entirety of the role. The noble and learned Baroness asked about a youth worker who taught Bible classes and drove the school bus. That was a good example, but, as I suggested earlier, the situation would depend
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The right reverend Prelate the Bishop of Winchester and others suggested that the Bill as the Government wish to amend it would make it more difficult for people to bring forward exceptions, and there would be more tests, bureaucracy and activity in the courts. We do not believe that at all. This Bill is about maintaining the status quo: it certainly would not mean more work for lawyers.
The right reverend Prelate the Bishop of Winchester also asked if paragraph 2 would prevent any lay assistant from being a Christian of good standing. It certainly does not prevent a lay assistant to a bishop from being a Christian. It would allow the application of requirements related to sex, marriage and civil partnership, and sexual orientation.
The noble Lord, Lord Pilkington, spoke of the important principle of freedom. The freedoms that we enjoy and celebrate will not be affected in any way by the passage of this Bill. As I understand it, the noble Lord was arguing for the widening of exceptions. That would not be acceptable: we want the status quo. Like all Members of this House, I want to enjoy and celebrate tolerance and to continue to do so.
As I mentioned earlier, the right reverend Prelate and others are under the impression that our amendment would mean a narrowing of the exceptions. That is not the case. Like the noble Baroness, Lady O'Cathain, we believe that there should be exceptions. There are exceptions, but there must be clarity; we do not want to leave any extra work for lawyers.
The right reverend Primate the Archbishop of York asked if the Government amendment would be limited to posts which exist only to promote or represent the religion. The answer is no: the word "only" does not appear. As I have made clear, posts which exist to promote or represent the religion are not limited to posts which only involve one or more of these activities, but one or more of them must be intrinsic to the post.
The Archbishop of York: I am very grateful for the noble Baroness's explanation. However, I am still not sure what is meant by "exists to". Does that mean promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary characteristics? The Minister has to define that. For example, the Secretary General of the Church of England sits on the Archbishops' Council, takes its minutes and does a number of things. He exists to do that, but that is not the only definition of the role of secretary general. Sometimes you may find him accompanying me to something else, which has nothing to do with the General Synod of the Church of England. Can the Minister assure us that unnecessary arguments about the meaning of "exists to" will not be introduced? My argument with the Minister is to do with the drafting, not where the Government are going.
Baroness Royall of Blaisdon: My Lords, as I mentioned when I originally spoke to this amendment, the Secretary General of the Synod would certainly
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They asked about court decisions. The point is that most cases do not come before a tribunal or court, however there is evidence that the absence of a definition caused confusion and that the existing exceptions were being misused. The Government received examples of where the exceptions appeared to have been inappropriately applied, such as advertisements by the Church of England for a pensions assistant and a director of finances.
There has rightly been much discussion of the need for exceptions, and we respect that need. There has also been talk of magnanimity. Magnanimity is justice, but I believe that what we are doing is justice. The Government are providing clarity. They are not narrowing the provision; they are consolidating and replicating but they are also clarifying, and good legislation means clear legislation.
The right reverend Prelate the Bishop of Exeter suggested that the amendment opens the Church up to more court intervention-I have spoken to this earlier. We believe that the opposite is true. By setting out clearly in the legislation the circumstances in which the exception applies, and therefore the balance of rights which must be struck, we believe that the courts will not need to adjudicate on these matters. As the judge said in the Amicus case,
The noble Baroness, Lady O'Cathain, rightly wants to stand up. She mentioned her package of amendments: I would like her to withdraw her Amendments 98 and 99, but if she tests the will of the House, I will wish to move the government amendment.
Finally, I agree with the most reverend Primate that principles and values matter. Among the principles that we all cherish are liberty, tolerance and equality. I believe that what we are discussing and what the government amendment delivers adhere to those three principles which we all cherish.
Baroness O'Cathain: My Lords, I am very grateful to all those who have taken part in this debate. I am grateful to the Minister, whom I count as a friend even if we do not always agree. We have had some excellent speeches, and some particularly wonderful speeches from the Bench of bishops, which clarified a lot of things in my mind.
The odd thing about this debate is that those of us who want to see Amendments 98, 99 and 100 succeed agree with government policy as stated by the Minister. The Government say that they do not want to change the legal position for churches when it comes to the
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Let us not forget that in 2004 the status quo wording was challenged in court by the Amicus union. The law of the land at present is the law as stated by our High Court in the Amicus case. This supports the original wording to which we want to return-not to the reasoned opinion of the European Commission, or, with respect, to the opinion of the noble Lord, Lord Lester.
Finally, you will be glad to hear, I will speak generally about the Bill. In another place, Michael Foster MP, the Equalities Minister, told one national newspaper that churches should be "lining up (their lawyers)" in anticipation of legal challenges. That cannot be the right approach to protecting religious liberty, but without the package of Amendments 98, 99 and 100 that is precisely what would happen. We must keep the status quo, and I wish to test the opinion of the House.
(a) the employment is as a minister of religion, or
(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others)."
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