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7.30 pm
Lord Warner: Does the noble Lord not think that, when public bodies responsible for providing public services contract out with religious organisations, they have some responsibility to ensure that vulnerable people are safeguarded under those regimes? There are plenty of examples of religious organisations which have abused public trust in these areas, and we cannot always be sure that they will not proselytise for people who are not of their faith who happen to be in their care at a particular time. Does the noble Lord agree that perhaps things are not quite as rosy as he was suggesting?
Lord Patten: I do not much care for the noble Lord's smear of Catholic adoption agencies-that they have somehow been involved in abuse or proselytising. I do not care for that at all. It is my belief that individual religious groups, as a testimony to their faith and beliefs, should be allowed, as part of the historic religious freedoms of this country, to provide a service to whoever wishes to buy it, whether it is the public sector or private individuals seeking to adopt a child or wishing to place their disabled or elderly relation, or adult relation with profound learning difficulties, within a religious community. The Government are totally wrong to take away from our churches and faith groups that historic right. This will come back again and again in the coming months. At the next Parliament, if we have not addressed these issues through amendments like the excellent Amendment 125A tabled by my noble and learned friend, many of us will be pressing for a Bill to protect religious freedoms in this country.
Lord Elton: Perhaps I may address the point that the noble Lord, Lord Warner, made. I am a little puzzled by his position. Presumably, a local authority can agree with an organisation with which it is making a contract what the terms of employment shall be for the purposes for which it is delegating the work. If it does not get a satisfactory agreement, it can either not transfer it to anybody or transfer it to somebody else. The local authority is not tied. It is not in a cleft stick. It does not have to go to a Roman Catholic organisation for adoption if it does not feel able to protect its transferred staff in the way it would wish.
Lord Warner: I do not want to delay this debate much longer and I do not disagree with the noble Lord. I was really trying to counter the rather rose-tinted view of religious organisations being put forward by the noble Lord, Lord Patten.
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Baroness Whitaker: I came into this debate not to speak but to listen. However, I am getting extremely confused. Perhaps my noble friend on the Front Bench can dispel my confusion. The amendments tabled by my noble friend Lady Turner appear to be excellent and to further what I understand to be the spirit of this part of the Bill and also Section 29 about services. Regarding employment and services, we are talking about functions carried out with the use of taxpayers' money by organisations acting as public authorities. I had thought that the purpose of the Bill was to make unlawful the discrimination, on various grounds, of people who either worked in these authorities or received the services. The amendments tabled by my noble friend Lady Turner appear to assist that.
Then I hear from noble Lords opposite that, in fact, freedom is being attacked by this will to erode discrimination. That is why I am puzzled. The freedom not to be discriminated against is prime. Surely this Bill is not for an organisation using public money and refusing its services in a discriminatory manner. Incidentally, I am aware of several religious organisations which provide services and employment on behalf of the public which absolutely comply with the spirit of the Bill, so there does not really seem to be this peculiar posited battle between freedom and discrimination. I hope my noble friend can explain the primary purpose of the Bill.
Lord Hunt of Wirral: I thought that the primary purpose of this Bill was to simplify and codify the law. Perhaps I have come to the wrong place. We have just heard a very extensive, wide-ranging debate, which, as my noble and learned friend pointed out, has been greatly extended by the fact that these issues were not properly debated in the other place. There is a problem. If you neglect the elected House and impose timetabled Motions which then cut out debate on issues as important as this, you are not doing your job as a Government to be answerable to the electorate.
Some very important issues have arisen in this debate. It started with the noble Baroness, Lady Turner of Camden, wanting to put in the magic word "genuine". We have not had much of a genuine debate about whether or not the word "genuine" needs to be inserted, which is technically what this debate is about, although there are a number of other amendments grouped. The most reverend Primate the Archbishop of York started off this debate so well when he said that surely what we have just voted for is tranquillity. He was responding to the noble Lord, Lord Lester, who said that the Bishops' Bench was a row of turkeys waiting for Christmas. If I may say so to the noble Lord, Lord Lester, I think the most reverend Primate was naturally very upset at that accusation. Surely what we want to do is to simplify the law and make it much easier to understand so that everybody knows what their rights are. I should not be confused, but I am a little uncertain as to what the Government are trying to achieve with this section. Is it preserving the status quo? Is it simplifying the law? Is it seeking to codify the law? I am not sure and we deserve an explanation from the Minister.
In so far as Europe is concerned, the Government must be regretting certain parts of the Bill, which they were advised would strengthen their case with the
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To go back to what is perhaps the most important principle, I agree with my noble friend Lord Patten and my noble and learned friend Lord Mackay of Clashfern. We have to strive to make sure that we do not create a situation where societies doing valuable work, often with the most deprived children, can no longer carry on that vital work. I agree with the noble Lord, Lord Warner, and I pay tribute to him. I saw him on a couple of occasions urging for a more mixed economy and the better delivery of services by utilising the resources of the private sector. I agree with him that we have to be very careful that the rights of an existing workforce to be transferred to another provider are carefully measured against the needs of the community that is being served. That must all be taken into account when the organisation taking on the service has to consider the implications of taking on that service, but also the Government have to consider how best they can ensure that the right service is carried on by the right people. My noble friend Lord Elton made a number of good points.
Like the right reverend Prelate the Bishop of Winchester, I am troubled and concerned by a number of aspects in this group of amendments-trying to dictate people's religion, what religious organisations can ask of their employees, the whole issue of faith schools and everything else that has been brought into this debate, which has lasted almost an hour.
We ought to return to the original purpose of the Bill, as the noble Baroness, Lady Whitaker, just said. What is the purpose of the Bill? When I was Secretary of State for Employment, I had the benefit of the noble Baroness as my director of the equalities office. I like to think that now and again, although perhaps not in public, she might acknowledge that I took careful note of a lot of guidance that I received from her, and I take careful note of some of the things that she said just now.
I say to the noble Lord, Lord Lester of Herne Hill-and, in a way, to myself-that we are lawyers. I am one of the few people in the solicitors' profession who still has a practising certificate, and I have had for 41 years. In many ways, I suppose people would think that we wanted the law to be complicated, but we do not; we want it to be simple and understandable. It is far better for society that we achieve that, so we look to the Government to clarify this situation.
Baroness Thornton: My Lords, there are various matters in this debate that need to be answered and I will do my best to do so, while being mindful of the time. With the leave of the House, I will answer the questions turned about-that is, I shall refer first to the amendment of the noble and learned Lord, Lord Mackay, and then move on to the others, because that will work better.
I say to the right reverend Prelate the Bishop of Winchester who, along with some other noble Lords, has suggested that there was little or no debate about
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In answer to the noble Lord, Lord Hunt, the provisions in Schedule 9(3) and Schedule 23(2) replicate the effect of current provisions. I hope that that point will deal with most of these amendments.
Lord Hunt of Wirral: My Lords, the Minister carefully used the words "replicate the effect of". Does that means that she believes they express it in a better way, or is it a codification of existing law?
Baroness Thornton: I do not know the answer to that in detail because I have not made that comparison myself. As the noble Lord is aware, the Bill is largely about consolidating. I can certainly get him a detailed answer that will go through the two schedules and do that analysis for him, if he so wishes.
Lord Lester of Herne Hill: Would it be right to say that one of the main purposes of the Bill is to state the law accurately, so far as possible, and in a way that reflects European as well as domestic law so that it is more accessible and all in one place?
Baroness Thornton: The noble Lord is right; hopefully, it will mean that the law can be easily read.
Amendment 125A would provide an exception for religious or belief organisations, or persons acting on their behalf, to impose restrictions because of sexual orientation on the provision of any services or functions being provided on behalf of a public authority. As noble Lords have rightly mentioned, we have a significant number of religious or belief organisations providing valuable services, often aimed at meeting particular requirements in some sectors of the community. I take issue with noble Lords who say that that is not the case and that the Government have not done a great deal to support those organisations in their work.
Under existing law, these organisations have a limited number of exceptions enabling them to refuse to provide a service or a function to gay, lesbian or bisexual people. We believe that this exception is entirely appropriate but only where such restrictions are necessary to comply with the doctrine of the organisation or in order to avoid conflict with the strongly held convictions of members of the religion or belief that the organisation represents.
Where a relevant religious or belief organisation is delivering a public function, however, that exception does not apply. This is because, while the Government are sensitive to people's religious beliefs, in circumstances where public money is being used to fund a service we take the view that the service should be provided to people irrespective of their sexual orientation, and I hope that the right reverend Prelate would agree with that. That is also the view of the Joint Committee on Human Rights, which welcomes the re-enactment and clarification of the existing provisions in Schedule 23(2) that concern discrimination on the basis of sexual orientation. The committee considers that there is nothing in any human rights standard that requires an
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7.45 pm
By contrast, the law enables the relevant religious or belief organisations to limit their service provision to people who have a particular faith or belief even where those services are being provided as part of a public service. This difference in treatment is for a valid reason. For example, a local authority that contracts out its provision of care for the elderly in an area with a large Jewish community may well choose to use the services of both a Jewish care home and a secular care home. We see that as entirely legitimate, provided that all those in need of care-I think the noble Lord, Lord Elton, made the point that we should address ourselves to those who need the care-are provided with it and to the same standard.
The exceptions as they are drawn and already operating provide the correct balance between the rights of those of a given sexual orientation to receive public services and not to be discriminated against and the freedom of others to manifest their religion or belief. For example, it is entirely legitimate that a local authority should contract with a Muslim organisation to provide meals on wheels that are halal. We cannot envisage any circumstances in which a religious organisation providing a public service could legitimately be allowed to provide it only to those of a given sexual orientation. This exception is designed to ensure that vital activities of such religious or belief organisations are not unduly hindered. Many of these organisations are used by local authorities because they provide specific services of a nature that the local authority itself cannot, or they do it in a better and more cost-effective way.
I turn to Amendments 101A and 101B. The amendments would mean that a religious organisation would be unable to require its employees to be of a particular religion or belief if they were acting as a public authority on behalf of, or under contract to, a public authority. Again, I make the point that religious organisations play an important role in bringing diversity to public life and the delivery of services that meet the needs of diverse communities. We recognise that such organisations need to be able to preserve their religious ethos. Schedule 9(3) allows them to have regard to their ethos when applying an occupational requirement for an employee to be of a particular religion or belief. Carefully targeted exceptions are an important means of allowing religious organisations to pursue their legitimate objectives.
It is important to stress that we are not doing anything new in the Bill with regard to the exception. We are preserving an existing exception in the Employment Equality (Religion or Belief) Regulations 2003, which implement EU directive 2000/78/EC on establishing a framework for equality in employment. A number of people seem to think that this exception gives religious organisations carte blanche to require all employees to adhere to their particular faith. This is simply not the case. I hope that I will be able to address the issues that my noble friend Lord Warner has raised in the next set of remarks that I make. I will then amplify them by writing to the noble Lord.
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The principal function of a care home is the provision of care, not as a vehicle for a religious organisation to proselytise. That means that most of its employees are providing care. As I said, the exception requiring employees to be of a particular faith is not carte blanche for every employee to be required to be of a particular faith. On the contrary, it is very limited and will apply to only a very small number of posts. Its application will be subject to stringent tests. In practice, the further removed the function is from a place of worship-for example, the care home-the more difficult it is for those tests to be met.
The EU directive specifically recognises religious employers as a special case. This is an entirely justified exception. It is right that it should apply to all relevant employees and workers, including those working under contract for public authorities. It is worth noting that the relevant article in the EU directive refers specifically to both private and public organisations whose ethos is based on religion or belief. There is no question of broadening the exception through the Bill. It remains a tightly drawn exception applying to very few types of employment. Its application will continue to be subject to strict tests.
The employer must show that requiring an employee to be of a particular religion or belief is an occupational requirement and that the application of the requirement is a proportionate means of achieving a legitimate aim. Lastly, the employer must be able to show that it has an ethos based on religion or belief. Any organisation choosing to rely on exemption needs to be able to justify its decision before an employment tribunal if challenged.
As we are not introducing anything new in the Bill, there is no question of legions of public workers suddenly having to reapply for their jobs the moment this part of the Bill is enacted. My noble friends asked legitimate questions. What would happen where public service workers are transferred to contracted religious organisations from a public authority? Could they be made redundant or dismissed should their new posts have a religious requirement attached to it that they cannot meet?
First, the strict tests that I have described would have to be met for the given post to have the exception applied to it. In the case of a care worker, for example, it is unlikely that it could be argued that he or she must be of a particular religion or belief for the purposes of the job unless the nature of his or her job goes beyond simply the provision of care. In most cases it would be sufficient that the employee should have some understanding or respect of the faith in question.
In addition to those tests for attaching a religious requirement to a given post, the Transfer of Undertakings (Protection of Employment) Regulations 2006 would need to be taken into account by the new employer in this situation. The TUPE regulations provide protection for employees from dismissal as a result of transfer. The employee would be treated as being unfairly dismissed unless the reason for the dismissal was economic, technical or organisational. It is difficult to see how a dismissal simply based on an employee's religious belief, or lack of it, could fall within the permitted reasons for dismissal under TUPE, as this is unlikely to constitute an organisational reason.
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As for the future prospects of public service workers who are transferred to a contacted religious organisation, in practice an occupational requirement that an employee be of a particular religion or belief applies to a very small number of cases. Again, the strict tests applying to the exception need to be met in every single case. Protection would be offered and would be discussed before that transfer of engagements was made.
The Government's view is that this exception strikes the right balance between protection-I hope that my amplification of this will reassure my noble friend-and allowing employers with a religious ethos the flexibility that they need.
I turn now to Amendments 101ZA and 101C-
Lord Patten: My Lords, before the noble Baroness leaves this important point, will she be kind enough to ensure that any letter that she writes on this point to the noble Lord, Lord Warner, is circulated to all noble Lords who spoke in this debate, because these are complicated and, I suspect, fiendishly difficult areas?
Baroness Thornton: My Lords, I give that undertaking willingly.
Amendments 101ZA and 101C seek to tighten up the drafting of paragraph 3 of Schedule 9, which preserves an exception that is currently provided by Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003. It permits employers and other persons with a religious ethos to require those working for them to be of a particular faith, provided that there is an occupational requirement with a legitimate aim. This test has to be applied to each post for which the exception is considered. A requirement must, by definition, be crucial to the post and not merely one of several important factors. The facts in each case will show whether the requirement is genuine. Therefore, I do not agree that Amendment 101ZA is necessary, although I appreciate that the 2003 regulations contain the word "genuine". I have always wanted to say the word "otiose" in the Chamber, so I am very glad to echo the noble Lord, Lord Lester. We consider that the word "genuine" is unnecessary. My noble friend will know that we are trying to keep unnecessary words out of this Bill to keep the Bill's English simple and plain.
I turn to Amendment 101C. I hope that I can assure my noble friend that the exception in paragraph 3 is intended to apply only to the protected characteristics of religion or belief as permitted by the EU framework directive on employment and occupational discrimination. The exception allows the application of a requirement to be of a particular religion or belief and thus could not apply to any other protected characteristics. With those reassurances, I hope that noble Lords will withdraw their amendments.
Lord Mackay of Clashfern: My Lords, the amendment that requires to be withdrawn is the one put forward by the noble Baroness, Lady Turner. Before she says what she wants to do about it, could I be sure that I have understood the Minister correctly? With respect to my Amendment 125A, does "sexual orientation" in the Bill mean sexual orientation or does it extend to sexual practice?
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Baroness Thornton: My Lords, it says "sexual orientation", so that is what it means.
Lord Lester of Herne Hill: My Lords, I am completely satisfied and would not dream of moving either of my amendments. However, I am not at all satisfied by the notion that sexual orientation does not include sexual practice, as it plainly does.
Baroness Thornton: My Lords, it does. I am sorry. I misunderstood the question and gave the wrong answer.
Baroness Turner of Camden: My Lords, I thank my noble friend for that very detailed response. I also thank noble Lords who have contributed to a very interesting and rather wide-ranging debate-much wider-ranging than I anticipated when the amendment was drafted. In particular, I thank the noble Lord, Lord Warner, because he spoke from a great deal of experience and gave what I thought was an unanswerable case that, when you have a transfer of employees from one employment to another, any union will do its best to ensure that the transfer that takes place does not mean a worsening of employment conditions for those employees. As far as this amendment was concerned, the idea was to ensure that people did not face demands in relation to their employment when a transfer was taking place that they had not had to face when they first took employment with a public service.
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