Equality Bill

I have added my name to Amendments 98, 99 and 100. In the same way as the noble Baroness, Lady Campbell of Surbiton, I support religious freedom, which is why I supported Amendment 119A and I now support these amendments. In the exemptions provided by the Employment Equality (Sexual Orientation) Regulations 2003, regulation 7(3), which is highly relevant to today, did not include the express requirement of proportionality, although regulation 7(2) did require it. Those exemptions, including the absence of proportionality, were challenged in the High Court in the Amicus case which has just been referred to by the most reverend Primate. Not to have the requirement for proportionality was upheld by the High Court judge. The introduction of the word "proportionate" in the two regulations inevitably changes the legal position. The word "proportionate" must mean something, and something more than the previous position because it was not there before—despite what seems to be the erroneous view of the Government, that this is exactly the same. Once you put a new word in it must be different. If this paragraph is challenged in the courts as a matter of interpretation or construction, a judge would look at the words in regulation 7(3) of the 2003 regulations and at the introduction of the word "proportionate" and be bound to find that there was a change. The effect would be to cause major problems for churches. There might be a situation where a church met the organised-religion test but could still lose a legal challenge in a particular case if a litigant argued that their action was disproportionate in his or her situation. That is not just my opinion—although I was once a judge, I do not see myself as an expert—but I have been provided with very important advice by James Dingemans, Queen’s Counsel, which supports exactly what I have just said. He has also raised an interesting point about the status of celibacy of priests of the Roman Catholic Church and whether under the new paragraphs of Schedule 9 the church might be challenged as not being a proportionate means of complying with the requirements of that church to have celibate priests. It is a very interesting idea. I do not know whether anyone from the Roman Catholic Church feels like expressing a view on that but it is raised again by James Dingemans, Queen’s Counsel. This is a controversy stretching over nearly 1,000 years so these are not uncharted waters, but it would be odd if it came up under the word "proportionate" in the Equality Bill. The noble Baroness, Lady Royall, quoted the noble Lord, Lord Sainsbury of Turville, who was speaking to the 2003 regulations. Perhaps I may add to her quotation of the noble Lord because he said in relation to the exemption in Regulation 3 admitting the test of proportionality: ""we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts".—[Official Report, 17/6/03; col. 778.]" The proposed rewording in this Bill is likely to have just the effect the noble Lord wished to avoid in 2003. I turn to government Amendment 99A. It continues to restrict the rights of religious groups to employ those who will be in sympathy with them and their strongly held religious convictions. However, through the Minister, the Government say that Amendment 99A clarifies the position. In my view, it does exactly the opposite for this reason: one has to ask what does the word "exists" mean? Is it intended to require the person selected to fill a post which solely exists to promote or represent the religion or partly exists for that purpose? The Minister says that it partly exists. I am not certain that that is the way the present wording will be seen if the matter gets to court. I shall give an example. The Minister spoke of a youth worker and so shall I. A youth worker may be employed to teach Sunday school but he may also be employed to drive the parish bus for the youth group. If the parish employs him to drive and driving is as important in one sense as teaching on a Sunday—he teaches one day a week but drives for three or four days a week—is he in an employment that exists for the purpose of promoting and so on, according to the words of Amendment 99A? I think there is a real doubt and, therefore, a real possibility that the use of the word "exists" might precipitate court proceedings, which would be an expensive and regrettable position and which quite clearly the Government do not intend. In my view, it imports uncertainty and may very well inhibit flexibility in the use of the employee by those who are afraid that by employing someone with more than one job they may be open to court proceedings. I also had a very touching letter from an organisation called Ellel Ministries, which reads: ""We are writing from Ellel Ministries International to ask if you’d kindly consider the implications of the Equality Bill to a Christian ministry such as ours. We have four centres, we help people in their time of need, we provide free Christian counselling, in the form of healing retreats, to the suicidal, the depressed, the traumatised, the abused and to the broken. If this Equality Bill became law, we’d be unable freely to employ people who are best qualified to bring the appropriate level of help to those in need"." It does not sound as though this is primarily Christian teaching. This is primarily helping, in a Christian organisation, those who are suicidal, depressed or traumatised, and I suspect that they are right, that they would not be able to have someone of their particular religious persuasion. This is probably a commendable effort by the Government to clarify what has happened, but it has not had the effect of clarification. It will have, possibly unintentionally, the effect, if it is passed, of restricting the rights of religious groups to work with those of the same views, holding the same religious convictions, and it will, if passed, create the confusion it seeks to avoid. Therefore I, too, support Amendment 98.