Equality Bill

My Lords, with permission I will speak to government Amendment 99A, but I will of course respond to all amendments at the end of the debate. Amendment 99A revises the definition of employment, ""for the purposes of an organised religion"," in paragraph 2(8). This provision has already been the subject of much debate in both this House and another place. Our amendment seeks to address concerns that have been expressed to us by the churches and others about the terms of paragraph 2(8). I have not tabled this Amendment because I believed that there was a problem with the original drafting. However, having listened carefully to the debate in this House and to representations from many members of the churches, we recognised that there were concerns about the need for further clarification. That is precisely what this amendment seeks to do—to clarify, not to change. 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, ""for the purposes of an organised religion"," is a significantly narrower expression than, ""for the purposes of a religious organisation"." A religious organisation could be any organisation with, ""an ethos based on religion or belief"." 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, ""for the purposes of an organised religion"," means a post, such as a minister of religion, involving work for a church, synagogue, mosque or temple. Ministers of religion are clearly in employment, ""for the purposes of an organised religion"." 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.