Equality Bill

I shall speak to this group of amendments as a whole. I cannot resist making the observation that, in the Division, the Lords Spiritual managed to vote as turkeys for Christmas—if noble Lords will forgive me for saying so—by removing the new and magnanimous protection that they were given. Proportionality was taken out of the Bill, probably encouraging the European Commission to suggest that our statutory powers will infringe its own and lead to further trouble. With this group, I will try to get clarification that the Bill will comply with EU law. Amendment 101ZA, in the name of the noble Baroness, Lady Turner, will insert "a genuine" into the phrase, ""it is an occupational requirement"," in paragraph 3 of Schedule 9. Can the Minister confirm that the amendment is not necessary because occupational requirement is already interpreted to mean a genuine occupational requirement when read in light of Article 4.1 of the directive? If that is confirmed, the need to include "genuine" becomes, as lawyers say, otiose. Amendment 101A seeks to insert the requirement that a public authority cannot apply the requirements exemption relating to employment for the purposes of religion or belief. Amendment 101B—my amendment—seeks to do the same thing. Both amendments seek to give effect to the exemption in Article 4.2 of the framework directive and consolidate Regulation 7(3) of the Employment Equality (Religion or Belief) Regulations 2003. Amendment 101C, in the name of the noble Baroness, Lady Turner, would write into the Bill what I think is the view of the European Commission: ""The exception under paragraph 3 shall not be used to justify discrimination on any other protected grounds"." Paragraph 3, as part of Schedule 9, deals with other requirements relating to religion or belief. The problem that the Commission may have raised is that the wording of the old regulations—and it seems this part of the Bill—contradicts the provision under Article 4.2 of the directive, which specifically says that permitted differences of treatment based on religion, ""should not justify discrimination on another ground"." Amendment 101C seeks to correct that. It is important because, as the noble Baroness, Lady Turner, said, some religious organisations have made it clear that they would seek to use this provision relating ostensibly to religion or belief to discriminate against employees on the basis of their private conduct—conduct relating to their sexual orientation or marital status. That is clearly outside the terms of Article 4.2 of the directive. We seek confirmation that that is so. Furthermore, the judgment of Mr Justice Richards, as he was in the Amicus case, makes it clear that lawful, private sexual conduct consisting of gay or lesbian sex is so closely bound up with sexual orientation that discrimination on the grounds of such conduct is not only unlawful—it is not a genuine occupational requirement under Article 4.2—but also direct discrimination and cannot be justified. Again we seek clarification. That is our understanding of the law. Amendment 125B is in my name but I have decided that there is no need to add to the complexity by pursuing it. Finally, Amendment 125A, in the name of the noble and learned Lord, Lord Mackay, would remove the exemption for sexual orientation in the provision of services by a public authority. As I understand it, his amendment would allow public authorities that provide services to discriminate against service users based on their sexuality. There are already a number of narrow exemptions for religious service providers but where they are publicly funded they should not be able to discriminate against those to whom they provide their public services. I do not want to go into the unanimous Court of Appeal judgment in the Ladele case—Heaven forbid that I should—where the registrar providing a public service refused to preside at a civil partnership registration, except to say that the judgment of Lord Neuberger, Master of the Rolls, and his two colleagues was, in my respectful judgment, inconsistent with Amendment 125A. We would therefore not support the amendment. I hope that that is clearer than mud.