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This issue was raised in connection with Catholic adoption agencies and grants. It is important to notice that, where a public authority or a contractor to a public authority is giving a service, it is the service that the public authority wants to pay for and to support. If the service is given, the mere fact that it is given in a particular religious ethos does not appear to matter, except from the point of view of choice. I do not want to reiterate the debate about Catholic adoption agencies, but one of the results was that, where a Catholic adoption agency decided to hold to the tenets under which it had previously operated, it just closed down. The result of that is only to destroy a successful, excellent service. It does not give the lesbian or gay community the slightest benefit, because the service previously offered is no longer available, but it means that a service that had success in difficult areas was closed. For my part, I cannot see the need for that.

This matter goes much wider than the Catholic adoption agencies, but the same principle applies. Where a service is required and a particular group is in a position to give a good service, it should not be prohibited from taking part in a publicly funded exercise simply because it has a particular view and practice with regard to sexual practice. That is the reason for my amendment. I will not expound it at great length because it is quite simple. It is in this group because it deals with the same basic matter as the other amendments in the group.

7 pm

The Lord Bishop of Winchester: My Lords, I welcome the amendment in the name of the noble and learned Lord and what he said about it. I was expecting him also to note that this is an area of the Bill where Parliament was particularly badly served by the practices at the other end of the Corridor. I believe that similar amendments were laid before the other place, but they were guillotined very quickly. It is a great pity that the House is so sparsely attended, given that we have such important business. I welcome the points made by the noble and learned Lord and I value the explication of the noble Lord, Lord Lester, of why Amendment 101ZA was otiose.

I turn to Amendments 101A to 101C and 125B. The effect of the two amendments in the name of the noble Baroness, Lady Turner, and, if I understand them rightly, those in the name of the noble Lord, Lord Lester, seems to be an utter impracticality. They would be likely to have the effect, if they were passed,

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of driving Christian and religiously based organisations out of the market for providing publicly funded services and, therefore, of removing from government at every level, nationally, regionally and locally, the opportunity to buy in services of a particular faith-based character and of a particular quality of excellence. At the minute, as I understand it, it is very much the policy of the Government to do that, which is an element of their activities that I welcome.

It is entirely impractical to suggest that a church or a faith-based organisation could be doing its work with its usual staff, for some of whom there would be a genuine occupational requirement of the sort that has been discussed under the Bill, but that, at the point when those same staff or that same charity were contracted to provide a service for government, whether national or local, the existing staff would not be usable for that purpose. The charity could not possibly employ another lot of staff or some other staff. There could not be two sets of staff and, if it was working without the staff doing its mainstream activity, it could not be offering the service for which it was contracted. If I understand the gist of the amendment in the name of the noble Baroness, Lady Turner, and the amendment tabled by the noble Lord, which is saying the same thing, I cannot think how that could be practical.

Amendments 101C and 125B seem to be a further narrowing of exemptions and a further restriction on religious organisations or organisations with a religious ethos in offering public services and receiving public money for bits of their work. I take paragraph 176 of the report on the Bill by the Joint Committee on Human Rights to be the background to the noble Lord's amendments and his speech. The report states:

"We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service".

That seems to put the cart before the horse. An organisation would be contracted to provide a public service because it already provides that kind of service in work for which it does not receive public money. The report continues:

"They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily".

It is necessary to say again that, if those involved are people for whom a genuine occupational requirement is permissible, they will be representing the organisation with its faith-based ethos or the church. If their personal lives are contradictory to their own faith-based position and that of the organisation or the church, they will not be performing their job satisfactorily. That is the essence of this case and the reasons why Amendment 101C, which I now understand as I did not before, and Amendment 125B are insupportable.

Lord Lester of Herne Hill: Perhaps the right reverend Prelate would tell me whether he read the last bit of paragraph 176. The Joint Committee said:

"We are concerned that the widespread use of the 'religious ethos' exception ... in Schedule 9(3) by organisations based on a particular religion or belief who are contracted to deliver services

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on behalf of public authorities could result in public functions being discharged by organisations in receipt of public funds who are nevertheless perceived to discriminate on the basis of religion or belief".

Does the right reverend Prelate accept that that is a valid concern?

The Lord Bishop of Winchester: I read to the end of the paragraph and it is side-lined in my text. But I am intrigued by the language, "nevertheless perceived to discriminate". The whole paragraph makes my point that if this is the line to be taken by government, that could mean goodbye to many of these organisations being available to offer some of their work through receipt of public funds, and to serve the state and the public in that way. That is the logic of that because I do not believe there is widespread use. I believe the use being made is legitimate and, to use the word we have all been using this afternoon, "proportionate". It does not seem to me that they can be doing their job satisfactorily if they are in denial of the objectives of the organisation they are serving in their private lives. I do not believe, however, that any Christian's life is private in that sense. Our activities are before the public, whoever we are.

Lord Warner: My Lords, I support the spirit of Amendments 101A, 101B and 101C. I am particularly attracted to the elegance of Amendment 101B. Before I begin my remarks, could I say to the right reverend Prelate that I am a long-standing supporter of a mixed economy of providers in public services? I have no problems with that at all. Indeed, I spent six years as a director of social services doing just that in Kent and I have transferred public services into other bodies. However, one of the features of this kind of transfer when another body takes over public services is the discussions that take place around assurances being given to the staff who are being transferred from the public body. Usually one of the deals is that their conditions of services are safeguarded. That does not mean that they are going to be then subjected to inquiries about their religion and their private lives. It does not mean that they are going to be discriminated against when promotions come up. It is absolutely reasonable for a Government who are taking an Equality Bill through this House and through Parliament, and it is not discriminatory against the churches, to protect those staff in those circumstances from discrimination. As I understand, these amendments do just that.

If we are not going to change the legislation in that way, we-and by "we" I also mean the Government-are accepting that level of discrimination, because the Bill does that. Sad to say, my honourable friend Vera Baird acknowledged that in the other place. She simply brushed aside the concerns in paragraph 176 of the report of the Joint Committee on Human Rights by in effect saying that,

I think that is rather sad, not because I want the Government to interfere in the ethos of religious organisations but because I would like them to be more robust in protecting the position of staff who are going to be transferred. I say that as a supporter of

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some degree of transfer of functions from public bodies for the better delivery of services to other organisations. I do not expect my noble friend the Minister to jump up and say "What an insightful man you are, Lord Warner. We thoroughly agree with everything you have said and we are going to have a change of heart". But I ask her to consider some questions before the Government give up the idea of any amendment in this area.

The questions the Government should ask are as follows. There are only five. First, when working under contract with or on behalf of a public authority, are organisations with a religious ethos permitted to put a religious requirement on a previously secular position such as a care worker? We need an answer to that. Secondly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of being made redundant or of dismissal should their new post have religious requirements attached to them which they cannot meet? Thirdly, if employees must reapply for their position with their new religious employer, is it possible that their lack of required beliefs might render them ineligible for the very post that they had previously held? Fourthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because more senior positions have religious requirements attached to them? Fifthly, are public service workers who are transferred to a contracted religious organisation from the public authority at risk of having their career prospects restricted because activities, training and other benefits are restricted to those who fulfil particular religious beliefs?

Those are all legitimate questions that trade unions, staff representatives or management should be asking before they transfer staff from a public to any organisation, religious or otherwise. It is particularly relevant when it is a religious organisation, which is what these amendments address. I do not expect my noble friend necessarily to answer all those questions now but I do expect her to give a serious answer in writing to those questions to reassure me and, I suspect, other Members of your Lordships' House.

7.15 pm

The Lord Bishop of Winchester: Does the noble Lord agree that he and I are talking at cross purposes about two quite different situations? I was speaking, as I should have thought was clear, and on what I thought was the matter being attended to, of organisations, either church organisations or of religious ethos, which find themselves contracted to undertake service on behalf of the Government and receive payment for doing so. The noble Lord is speaking of the transfer of organisations from the public service into the employment of a religious organisation. The points he is making have to be thought through. Some religious organisations might judge that to accept the kind of contract he is speaking of would so dilute their aims and objectives that they should not enter it in the first place. Some religious organisations which have agreed to such contracts have had their objectives so diluted that they have ceased to be what they were. But we were, I think, talking about two quite different situations.

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Lord Lester of Herne Hill: Before the noble Lord, Lord Warner, replies, may I add a point that has not yet been made and which I think needs to be made? Under the European Convention on Human Rights and under the Human Rights Act, the United Kingdom has a policy of obligation to ensure that public authorities and bodies that are private but performing functions of a public nature, do not discriminate on the basis of a person's sexuality, among other things. That is an obligation which, to take the example of the noble Lord, Lord Warner, reaches beyond a public authority in the strictly formal sense to a body which is private in form but is exercising functions of a public nature which involves discrimination.

The right reverend Prelate talks about a religious body which finds itself performing functions of a public nature and receiving state funding for doing so. I do not think it is a question of finding itself doing so-it chooses to do so. Instead of deciding not to have public funding and not to perform the service, it chooses to do so. Once it does, the United Kingdom has an obligation to ensure, on the basis of the case law I have seen, that it does not discriminate on the basis of sexual orientation, except in very narrow circumstances, such as necessity, proportionality and so on.

That is why it is important to clarify the issues we are talking about to ensure that, when one contracts out functions that would normally be performed by the state to bodies that are "private", the reach of human rights law extends to them. If they decide not to accept public funds and not to perform a public service, that is their entitlement. One could say, however, that otherwise they might be having their cake and eating it and the poor old UK Government would ultimately be responsible for that, either under the Human Rights Act or under the convention.

Lord Warner: My Lords, to answer the right reverend Prelate, I do not think we were talking at cross purposes. I was very clear in what I was talking about: the legislation as it stands potentially discriminates against those people who transfer from a public body to an organisation with a religious ethos that is carrying out functions on behalf of a public body. I have a longer speech with which I will not delight the House tonight about the possible discrimination for the users of those services as well, but that is a matter perhaps for another day. I am speaking on the narrow point that we need to protect staff who are transferred from a public body to an organisation which has a strong religious ethos. The questions I have asked relate to that, and it is no good trying to pretend that we are not faced with a real problem here.

Lord Elton: The interests of the user of a service is surely not something for another day, but for us to consider when looking at these amendments. It seems to me that the issue has been extraordinarily absent hitherto because we have been discussing the rights of the people who deliver services.

The effects of legislation which has been passed without democratic discussion in another place, first as secondary legislation and secondly under the guillotine,

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have been to very considerably injure the users of services, and that is what I hope your Lordships will concentrate on.

Lord Patten: My Lords, I support my noble and learned friend Lord Mackay in his Amendment 125A. Between us we just about represent the two ends of Christian practice in these islands, as indeed we live at their opposite ends geographically. It is a strange irony that my noble and learned friend should be leaping to the defence of the Roman Catholic Church, something I shall draw to the attention of the Archbishop of Westminster, who I am sure will be suitably grateful. We need help from whichever quarter we can get it.

That said, my noble and learned friend and I also represent between us a determination to try to protect reasonable and centuries-old established religious freedoms rather than wishing to come up with some brand spanking new right or another. Indeed, the attacks by the present Government on historic religious freedoms that Amendment 125A seeks to correct have become so severe that in a new Parliament, I think that the pressure for an Act to protect religious freedoms will grow and grow. It will also be an issue in the forthcoming general election for individual candidates breaking this way and that. There will also be pressure to resist the present trends encouraged by the European Convention on Human Rights which surely was never meant to entrench that in all cases, and without exception, the individual automatically trumps the group or community. Surely there must be some continuing recognition, as Amendment 125A seeks to establish, that in a truly tolerant and pluralistic society, there is not simply a collective of individuals, for therein, in that attitude, lies totalitarianism.

This was summed up very well by my noble friend Lord Bates speaking, as it were, ex cathedra from the Conservative Front Benches in his winding-up speech on 14 January in the debate introduced by the noble Lord, Lord Harrison, on toleration. My noble friend said,

Amendment 125A seeks to recalibrate the pendulum's swing in the interests of religious tolerance, and in it my noble and learned friend has taken a very measured and careful approach. One reason why the pendulum may have gone a bit haywire, as pendulums do, is probably constitutional. As my noble friend Lord Elton just pointed out in his brief but telling intervention, when another place debated back in 2006-07 issues concerning not only religious adoption services but also the state of residential homes, the record shows that precisely four minutes was allowed for the debate on religious adoption agencies before the guillotine fell. My noble and learned friend speculated that guillotines fall with a click, but I think they come down with a clunk and a thud. But what is entirely wrong is that no time at all was allowed for debate on the position of those providing services in residential homes where there is a religious ethos.

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I understand from reports in the press that the noble Lord, Lord Butler of Brockwell, who is not in his place today, and other great members of the upper reaches of our mandarinate are producing a report for publication on Wednesday that will highlight a number of ways in which Governments, in particular this Government, have failed to govern well. I understand that it is going to say that one of the worst things that has happened is that so much legislation has gone through another place with no scrutiny whatsoever. I believe that to be totally wrong and for it to have been done in such a prejudicial way as to try to attack historic freedoms and religious faiths of all sorts, not just Christian, in this country. I think it is on constitutional as well as on the other grounds that it is necessary to take a fresh look at the issue, and that is what Amendment 125A seeks to do.

There are important human rights concerns here, but not just for service providers. As my noble friend Lord Elton has just so rightly pointed out, there are human rights that the legislation to which I have referred have trampled on. Let us take adoption services and the right of the child who needs a family and the rights of a family that wishes to adopt a child: what about those rights? I refer also to the rights of the providers of adoption services who sometimes are not so much concerned with their own personal and private lives but wish to provide services in response to faith beliefs and are moved to do so as an expression of their faith and their vocation-something which I believe this Government have treated with contempt, and I choose the c-word "contempt" with great care.

Already, as the right reverend Prelate said in his speech, agencies run by, for example, various Catholic children's societies have stopped providing services for children and would-be adopters who need their help. For example, the Catholic Children's Rescue Society in Salford and the Catholic Children's Society in Westminster have been forced to cease their adoption work. What a triumph for the equality project that is. The recently retired CEO of the Westminster Catholic Children's Society said in giving the reason why the service has had to cease:

"We would not be able to state within the context of adoption, that it is our belief that a married couple is better for children".

I respectfully and admiringly agree with Mr Jim Richards-just for the record, once a Labour councillor and now in his happy retirement a deacon in the Roman Catholic Church.

I would like to ask the Minister this: how many children does she think have suffered so far because of this legislation? How can the Government really claim to be in favour of diversity and choice? Do they not recognise that religious charities and trusts which contribute to the provision of adoption for the young or provide residential homes within a faith ethos for the elderly, the disabled or those with learning difficulties have their own ethos which should be respected? In logic there can be no case under any circumstances for insisting that religious groups operate against their beliefs unless they are the unique monopoly supplier. I have never known of such a unique monopoly supplier of any service for which public funds are provided.

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Surely, when we see that equality laws to help one group-which I do not necessarily object to-are so constructed that they turn out to damage another group-which I object to very much-however worthy in their original aims, it seems that the whole equality agenda has lost its balance and begun to promote inequality, thus becoming an inadvertent tool for intolerance and the oppression of religion in these islands.

So I hope that the Minister will contemplate carefully what my noble and learned friend Lord Mackay, my noble friend Lord Elton and the right reverend Prelate the Bishop of Winchester have said and agree to take away these issues to consider them before Report.

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