Equality Bill

I hope in this debate that I am the lighthouse and not the aircraft carrier, but we will see. Before I come to the law, I want to mention the episode of the noble Lord, Lord Sainsbury of Turville. I think it was I who pressed him because I was concerned that the then regulations were too broad and would allow a religious body to discriminate against a lesbian cleaning lady. That concern led to the judicial review in the Amicus case and Mr Justice Richards, as he then was, giving a strict interpretation of broad regulations indicating that they could not be read in a loose way. I say that to avoid some misunderstanding which has been expressed about that case and his judgment. Amendments 98 and 99 would remove the principle of proportionality. That is a general principle of European law by which the United Kingdom is bound. The amendments would remove that principle as regards differences of treatment made to comply with the doctrines of a religion. As has been said, there are a number of exemptions for religious requirements in paragraph 2 of Schedule 9 relating to sex, marriage, sexual orientation and so on. For example, in certain circumstances it is permissible, for the purposes of religious employment, for a difference of treatment to be made in accordance with a requirement either not to be of a particular sex or relating to sexual orientation—quite right, too. Under the Bill, these exemptions must be applied in a manner that is a proportionate means of complying with the doctrines of religion. Removing proportionality here, as these amendments seek to do, would mean that any religious organisation could implement the requirements without a sense of proportion and in breach of the general principle of European law. In other words, the organisation could lawfully use its powers in a way that was excessive. That would inevitably lead to complex and costly litigation, as happened in the Amicus case, in our and the European courts, the outcome of which would be to require the principle of proportionality to be applied as part of the law of the land, whatever the movers of these amendments and the seven Bishops now present may say. It is the law under European law and it is the law of the land. Proportionality is required whether they like it or not. In my view—James Dingemans QC takes controversial views on some of this in other contexts, with great respect to him—Amendments 98 and 99 are outwith the scope of Article 4(1) of the EU framework directive, while Amendment 100, in opposition to government Amendment 99A, would also clearly be incompatible with European Union law. In view of the way the debate has gone, it is important to have regard to what is meant by proportionality. The European principle of proportionality is at the heart of the Bill. It requires a fair balance to be maintained between rights and freedoms where they compete or conflict with each other. The principle of proportionality is inherent in European Union law, European convention law and our own law. It applies to our legal system via the Human Rights Act and specific legislation such as in the Equality Bill. That principle is allied to the European principle of legal certainty.