Equality Bill

My Lords, this has been an excellent debate on an important group of amendments. I have to say that some aspects of the debate have saddened me, but none the less it has been extremely important and reasonable in many ways. Amendments 98 and 99 are in the names of the noble Baroness, Lady O’Cathain and the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson and the right reverend Prelate the Bishop of Winchester. These amendments would remove the express test of proportionality in sub-paragraphs (4) and (5) of paragraph 2. In effect, paragraph 2 would state that complying with religious doctrine or avoiding conflict with strongly held religious convictions, are automatically proportionate occupational requirements. Paragraph 2 replaces and harmonises the two separate exceptions for religious occupational requirements in current discrimination legislation that my noble friend referred to when replying to the debate on my noble friend Lord Alli’s Amendment 97E. The existing exceptions do not expressly include a proportionality test, as many noble Lords have said, but it is implicit, and its expression in paragraph 2 does not narrow the exception. It simply clarifies the existing law, reflecting, as the Joint Committee on Human Rights pointed out in its recently published report on the Bill, the approach adopted in the Amicus case to which I referred earlier. In the view of the High Court in that case, one of the existing exceptions, regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, is ""on its proper construction, very narrow. It has to be construed strictly since it is a derogation from the principle of equal treatment; and it has to be construed purposively so as to ensure, so far as possible, compatibility with the Directive"," that the 2003 regulations implemented. Regulation 7(3) was intended to form part of the implementation of Article 4(1) of that directive, which requires the implementing legislation—regulation 7(3) and, therefore, paragraph 2 of Schedule 9—to incorporate a proportionality test. The proportionality test is fact-sensitive, meaning that what is proportionate in any particular case will depend on the circumstances. Therefore, in a case being taken to an employment tribunal, this would require assessment by the tribunal, but it would not be necessary or indeed appropriate for the tribunal to determine whether the doctrines of a particular organised religion could themselves be said to be proportionate. Rather, the tribunal would have to decide, in the particular circumstances of the case, whether applying the requirement in question was proportionate to comply with the religion’s doctrines or avoid conflicting with a significant number of the religion’s followers’ strongly held religious convictions. For example, it is unlikely that applying a requirement to a senior church representative not to be married to a divorcee would be a proportionate way of complying with the doctrines of the religion if the person's spouse previously had been married only briefly before converting to Christianity. I am very grateful to the noble Lord, Lord Lester, for his clear explanation of proportionality and the European law. I note the concerns expressed by the noble and learned Baroness and I shall return to those shortly. It is important to note that the proportionality test appears explicitly throughout the Bill. Removing the test from paragraph 2 of Schedule 9 would put this provision out of step with other exceptions for occupational requirements in Schedule 9 and other areas in the Bill where a test of proportionality applies. It is unclear what the courts or tribunals might infer from a difference of approach in this case. I come back briefly to the reasoned opinion from the European Commission. I am very grateful to the right reverend Prelate the Bishop of Exeter for his acceptance of the Government’s position that I set out earlier. I hope that Her Majesty’s Official Opposition will also accept that we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of Schedule 9 replaces, to bring this position into line with the directive. That was incorrectly stated in the reasoned opinion. Opinions between the Commission and the relevant authorities in the member states concerned are confidential. We of course have to respond to the European Commission. It would not be appropriate for me to state everything that was in our response to the Commission, but the Commission has wrongly accused the Government of saying something. Therefore it would be entirely natural if the Government were to make representations to the Commission, pointing out that we had been wrongly accused. Perhaps I may put it in that way. I was asked why we are narrowing the scope of the existing exceptions by including a proportionality test. It is true that the existing exceptions, which paragraph 2 of Schedule 9 replaces and harmonises, do not include an express proportionality test, but they must be interpreted by the courts as if they did, in order to be compatible with European law. In response to the noble Lord, Lord Tebbit, that is not to say that in following European law we need not necessarily follow the law of the Lord. Therefore, for the sake of clarity, we are spelling out the requirement implicit in the existing exceptions. Not doing that would put the exception in paragraph 2 out of step with other exceptions for occupational requirements in Schedule 9, the wording of which has been harmonised. That is consistent with the Bill’s fundamental aim to simplify and harmonise the law, wherever possible. The noble and learned Baroness, Lady Butler-Sloss, suggested that by adding proportionality the Government meant that the exception meant something different. Making the test explicit simply clarifies the existing law, reflecting the approach adopted in the Amicus case. That is also the view of the Joint Committee on Human Rights. I turn to Amendment 100, tabled by the noble Baroness, Lady O’Cathain, the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson of Swansea and the right reverend Prelate the Bishop of Winchester. This amendment is necessarily consequential on government Amendment 99A, but of course the noble Lords wish to remove the definition in paragraph 2(8) of employment, ""for the purposes of an organised religion"," not replace it. Removing the definition would reduce legal certainty and be a recipe for confusion. Organised religions and people whom they employ or who apply to work for them would not know for certain to which posts a requirement related to sexual orientation, for example, could lawfully be applied. It would also increase the risk of the exception being misused. In the event of legal proceedings, employment tribunals and the courts could not be certain as to which roles Parliament intended the exception to cover. The noble Baroness, Lady O’Cathain, asked whether the Labour Party would expect Greenpeace to employ oil executives. This exception is not about the ability of churches or religious organisations such as charities to require employees to share their faith. There are separate exceptions for this in paragraphs 1 and 3 of Schedule 9. This particular exception allows churches and mosques to discriminate in limited circumstances because of sexual orientation, marriage, civil partnership and gender reassignment. In response to questions on the Government’s amendment, I am grateful to my noble friends Lady Turner of Camden and Lord Graham of Edmonton for their support. The noble and learned Baroness, Lady Butler-Sloss, asked what "exists" means. It means the same as what my noble friend Lord Sainsbury meant when he used that expression during the passage of the 2003 regulations, which the High Court in the Amicus case interpreted. As I said earlier, the activity must be intrinsic to the role, but it need not be the entirety of the role. The noble and learned Baroness asked about a youth worker who taught Bible classes and drove the school bus. That was a good example, but, as I suggested earlier, the situation would depend on the purpose of the role and the nature of the work involved. Organised religions must be prepared to justify applying requirements of this kind on a case-by-case basis. It is important to emphasise that the exception applies to a very narrow range of employments. The right reverend Prelate the Bishop of Winchester and others suggested that the Bill as the Government wish to amend it would make it more difficult for people to bring forward exceptions, and there would be more tests, bureaucracy and activity in the courts. We do not believe that at all. This Bill is about maintaining the status quo: it certainly would not mean more work for lawyers. The right reverend Prelate the Bishop of Winchester also asked if paragraph 2 would prevent any lay assistant from being a Christian of good standing. It certainly does not prevent a lay assistant to a bishop from being a Christian. It would allow the application of requirements related to sex, marriage and civil partnership, and sexual orientation. The noble Lord, Lord Pilkington, spoke of the important principle of freedom. The freedoms that we enjoy and celebrate will not be affected in any way by the passage of this Bill. As I understand it, the noble Lord was arguing for the widening of exceptions. That would not be acceptable: we want the status quo. Like all Members of this House, I want to enjoy and celebrate tolerance and to continue to do so. As I mentioned earlier, the right reverend Prelate and others are under the impression that our amendment would mean a narrowing of the exceptions. That is not the case. Like the noble Baroness, Lady O’Cathain, we believe that there should be exceptions. There are exceptions, but there must be clarity; we do not want to leave any extra work for lawyers. The right reverend Primate the Archbishop of York asked if the Government amendment would be limited to posts which exist only to promote or represent the religion. The answer is no: the word "only" does not appear. As I have made clear, posts which exist to promote or represent the religion are not limited to posts which only involve one or more of these activities, but one or more of them must be intrinsic to the post.