My Lords, I reiterate my membership of the Joint Committee on Human Rights, whose report on the issues on which I will speak is before your Lordships’ House today.
Amendment 13 provides for amendment to Clause 2(5) of the Bill. Despite all that was said on Monday in respect of the Equality Act, and I listened very carefully to all the contributions, there is a significant risk that religious organisations and individuals could be treated less favourably by a public authority in the exercise of its functions, for example, as regards funding, as a result of the public sector equality duty under Section 149 of the Equality Act 2010. This could occur in two rather different situations: first, following a decision by a religious organisation,
“not to opt-in … be present at, carry out, participate in, or consent to the taking place of”,
same-sex marriages; and, secondly, following the expression by an individual or organisation of an opinion or belief that marriage is,
“the union of one man with one woman”.
This amendment would protect religious organisations and individuals from unfavourable treatment in both these circumstances.
Under Section 149 of the Equality Act, public authorities such as local authorities are under a duty to have due regard to the need to advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it. In particular, public authorities must have due regard to the need to remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic. Since the enactment of the first public sector duty in 2001, there has been extensive litigation and an expansion of the discretion of public authorities in this context. The courts have consistently interpreted the duty of due regard as a duty to further equality of opportunity and not just a duty to avoid discrimination.
Public authorities have in practice used this discretion to pursue broad equality aims and the courts have been reluctant to second-guess the discretion of public authorities. Public authorities have, for example, denied public contracts to organisations which they regarded as unsuitable—for example, on race equality grounds, and the courts appear to have deemed this entirely lawful. As noble Lords will already be aware, the public sector equality duty now imposes duties on multiple grounds, which include sexual orientation and religion. This means that public authorities now have significant discretion in deciding how best to balance these grounds if they clash, and they will clash.
In relation to the first scenario—unfavourable treatment of a person following a decision not to opt in—the amendment is needed for three reasons. First, the Bill does not expressly state that a public authority will act
ultra vires if it penalises a person following any of those decisions. Clause 2 protects from compulsion; it does not appear to protect religious organisations from being treated less favourably by public authorities under Section 149. The Government appear to think that less favourable treatment should be ultra vires. In the Secretary of State’s response to the Catholic Bishops’ Conference of England and Wales, she said:
“In all circumstances a person who has suffered detriment for the reason that they have not done one of the acts specified in Clause 2, will be able to rely on the protection in Clause 2 to show that such conduct is unlawful”.
During the Public Bill Committee, the Minister stated,
“as the law stands, a public authority would in fact be acting unlawfully … if it attempted to treat a religious organisation adversely simply because that organisation refused, as is explicitly allowed in the Bill, to conduct same-sex marriages. If, for example, a local authority withdrew meeting facilities from a Church only because it did not offer same-sex marriage, that would be likely”—
likely, my Lords—
“to be unlawful direct religious or belief discrimination”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 5/3/13; col. 349.]
This is not clear in the Bill because an ordinary dictionary definition of “compelled” does not include treating someone less favourably. Nor is it at all clear, for example, that it would be unlawful direct religious discrimination for a local authority to withdraw meeting facilities from a church on the ground that it does not offer same-sex marriage. At most, it is likely to amount to prima facie unlawful indirect discrimination and that would then be subject to the justification defence. We know that the results which flow from judicial scrutiny of such defences are uncertain.
Secondly, Clause 2(5) and Clause 2(6) of the Bill provide explicit protection from Sections 29 and 110 of the Equality Act, despite the comprehensive protection from compulsion which Clause 2 is supposed to provide. The presence of these extra exemptions in Clause 2(5) and 2(6) casts serious doubt on the scope of the protection from compulsion. If it is necessary to have exemptions for these sections, it is also necessary to have a separate exemption for Section 149, to give the protection provided for in this new clause.
Thirdly, even if it were established that the actions of the public authority were ultra vires in the scenario described, such a clarification would come only as a result of a judicial review being taken by religious organisations, which would be time-consuming and expensive. What is more, domestic courts have been reluctant to second-guess the discretion of public authorities, where allegations have been made that more weight should be given to a particular ground of equality. The Secretary of State has been careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful. The Secretary of State has said only that the decision would be vulnerable to challenge. This amendment will provide the necessary clarification, and thus protect persons from unfavourable treatment, by making it explicitly clear in the Bill that public authorities cannot have regard to decisions by persons not to opt-in, conduct, be present at, carry out, participate in or consent to the taking place of same-sex marriages.
In relation to the second scenario, in which persons may be treated unfavourably under Section 149 following an expression of the opinion that marriage is the union of one man and one woman, the amendment is necessary for two reasons. First, the Government have repeatedly stated that teachers will not be required to promote or endorse views which go against their beliefs. The Minister stated at the Public Bill Committee:
“It is therefore perfectly lawful for a teacher in any school to express personal views on sexual orientation or same-sex marriage, provided that it is done … in an appropriate manner and context”.—[Official Report, Commons, Marriage (Same Sex Couples) Bill Committee, 28/2/13; col. 305.]
However it is not clear from the Bill that a teacher would be able to teach that marriage should be only between a man and a woman, because some parents, pupils or other teachers could find such teaching deeply offensive. The public sector equality duty could force a school to review, for example, its anti-bullying strategy to ensure that such expressions of opinion are not given. A teacher could thus be disciplined for expressing such an opinion to his or her pupils.
Secondly, if a school’s curriculum positively presents only opposite-sex marriage, there is a danger that the school could fall foul of the Section 149 positive duty on schools to advance equality of opportunity and to foster good relations between people with different protected characteristics. The public sector equality duty could consequently compel schools to endorse same-sex marriages, not just to teach the fact that they exist.
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If the Government agree that less favourable treatment should be ultra vires, then the appropriate approach is to make clear this fact in the Bill, thus avoiding unnecessary litigation. It is unclear why the Secretary of State does not think that it would be “helpful to make legislative changes to the public sector equality duty” when a narrowly tailored amendment is possible, which would resolve the problem without adverse consequences for the public sector equality duty more generally. It is better to eliminate this uncertainty now by making this amendment than to leave uncertainty that is likely to be litigated on.
I move now to the issue of public function and Amendment 18. This amendment will introduce a definition in relation to the word “compelled” in Clause 2. It will provide protection for religious organisations when deciding whether or not to undertake an opt-in activity or an opt-out activity for the purposes of Section 29 of the Equality Act, the Equality Act more broadly, the Human Rights Act and judicial review. This amendment is necessary because religious organisations may be held to be exercising a public function when exercising their discretion to decide whether to opt in or out under Clause 2(1).
In relation to Section 29 of the Equality Act 2010 and the Equality Act more broadly, the exemption in Clause 2(5) to Section 29 of that Act constitutes one of the Government’s so-called quadruple locks. Clause 2(5) makes it clear that discrimination claims cannot be brought against religious organisations for refusing to marry same-sex couples, for example. However, the protection is incomplete. Clause 2(5) makes an exception for individuals only if they decide not to conduct a
relevant marriage, not be present at, carry out or participate in a relevant marriage, or not to consent to a relevant marriage being conducted. This list of activities echoes exactly the activities listed under Clause 2(2). There is no reference to the activities listed under Clause 2(1). There is no protection under the Equality Act for persons, as defined in the Bill, who exercise the discretion given under Clause 2(1) and decide not to opt into providing same-sex marriages. This is an important omission.
Section 29 of the Equality Act covers the provision of services and the performance of public functions. It states:
“A person … concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service”,
and that a person,
“must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination”.
Persons are therefore given this protection when performing Clause 2(2) activities because the Government consider those activities to involve either the provision of a service or the exercise of a public function. The protection from the threat of legal action under Section 29 ensures that persons will be truly free not to perform Clause 2(2) activities if they have a conscientious objection to so doing.
Why are persons not afforded the same protection when performing Clause 2(1) activities? It is entirely possible that a person as defined in the Bill, when deciding whether or not to opt into performing same-sex marriage ceremonies, will be performing a public function. If that is the case, it is imperative that protection is also provided for persons when performing these activities. In short, religious organisations are at risk of successful discrimination claims by virtue of Section 29. This lock will therefore provide very little protection indeed.
The reason why religious organisations are at risk of being held to perform a public function when exercising their discretion under Clause 2(1) is as follows. First, while it seems to be highly unlikely that in general a religious organisation would be regarded as a public authority, bodies that are not generally public authorities may nevertheless be regarded as hybrid authorities if they exercise some public functions. While giving evidence to the Joint Committee on Human Rights, the Secretary of State recognised that in the Church of England, the minister performs the function of a registrar, and thus performs a public function. It is possible she is under the misconception, however, that only the Church of England are in that position, and that in every other religious organisation, the minister performs the religious part of the ceremony, and a separate registrar performs the civil part. That is not true. In the Catholic Church, for example, a religious organisation which is going to have the option of opting in, the priest or another designated person acts as the authorised person performing the civil function. The priest conducts the marriage ceremony—the religious ceremony—and it is usually the priest who is the authorised person who also performs the administrative or civil aspect of the marriage. Therefore, despite the Secretary of State’s assertion, other religious organisations
such as the Catholic Church also perform a public function when they conduct marriages. I apologise—I should have probably declared an interest as a Catholic.
Does the fact that religious organisations such as the Catholic Church, many minority churches, and many other churches, conduct marriages that are both religious and civil, make the religious organisation a hybrid public authority? The answer to this question may well be “yes”, because religious organisations perform a public function when conducting civil marriages. Jack Straw, when he was Home Secretary and the Minister presenting the Human Rights Bill in 1998, said in the House of Commons:
“There was a time when one could get married only in church but, these days, marriage is a matter of civil law—it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society”.—[Official Report, Commons, 20/5/98; col. 1017-18]
The Joint Committee on Human Rights makes recommendations on these matters at paragraphs 57 and 58, noting the clear disagreement in evidence to the Committee regarding whether this is a public function. The committee states:
“We believe that the solemnisation of legally-binding marriage by any religious organisation under the provisions of the Marriage Act 1949 may be a public function”.
This could render a religious organisation’s decision not to opt in to conducting same-sex marriages challengeable under the Equality Act 2010 on the grounds that the decision constitutes a public function. This argument is strengthened by Clause 11(1), which provides:
“In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples”.
What is more, because the discretion to opt in in Clause 2(1) will be a statutory discretion, the likelihood that the discretion will be regarded as a public function is significantly increased.
The Secretary of State responded to this concern by saying:
“In our view, the decision to opt-in or not is not a public function – it is not a function of a public nature. The fact that it would enable a religious organization subsequently to undertake a function that is arguably of a public nature (ie the legal solemnization of same sex marriages) does not make any conduct prior to that also a public function”.
In the Public Bill Committee the responsible Minister stated that a decision whether to opt in or not is a public function under Section 29 of the Equality Act. He stated that,
“a religious organisation’s decision whether to opt into conducting same-sex marriages is neither a service to the public or a section of the public, nor a public function”.—[Official Report, Commons, Marriage (Same Sex Couple) Bill Committee, 5/3/13; col. 348.]
That assurance is welcome. It is not clear on the face of the Bill. Should a dispute arise before a court of law, a ministerial Statement provides no guarantee that a court will not find that a religious organisation has exercised a public function in deciding not to opt in under Clause 2(1); indeed, what the courts may consider to constitute a public function is not altogether certain. Without this amendment, a risk will remain that religious organisations that conduct legally recognised opposite-sex marriages could be regarded as exercising a public function in deciding whether or not to opt in.
The second reason is that religious organisations will be at risk of legal action under the Human Rights Act and/or by way of judicial review, on the grounds that exercising the discretion not to opt in could involve a public function. If it is genuinely the Government’s intention that religious organisations should not face legal action on the ground that they perform a public function when exercising their discretion under Clause 2(1), why not say so on the face of the Bill?
The Government have argued that making a specific statement on the face of the Bill that religious authorities are not, for these purposes, exercising public functions, would be unhelpfully confusing. The Secretary of State has written to the Roman Catholic Church, saying:
“To make a specific statement of the sort you have requested might … risk creating doubt about whether other decisions made by religious organisations are also public functions”.
With respect, this response is unconvincing. As we have seen, there is already uncertainty about which decisions are public functions. The proposed new clause would introduce a degree of clarity in one area of activity, and that can hardly be regarded as unhelpful. A risk, possibly a significant risk, has been identified. Even if litigation against a religious organisation may ultimately be successfully resisted, that will be so only after the organisation has incurred costs. Religious organisations should not be exposed to such costs, particularly if they are not public bodies, as the Government assert. The explicit protection provided in the amendment is clearly needed. I beg to move.