I have written previously in my personal blog here about the Employment Equality regulations and the role played by the Archbishops’ Council in their framing.
Here is the full text of the letter which William Fittall, Secretary General of the General Synod and the Archbishops’ Council, sent to the Clerk to the JCSI on 9 June.
Comment about this is invited from readers. I expect to publish my own analysis here shortly.
Martyn Atkins Esq
Clerk to the Joint Committee on Statutory Instruments
House of Commons
9 June 2003
EMPLOYMENT EQUALITY REGULATIONS
Having read the transcript of last Tuesday’s oral evidence from the Department of Trade and Industry, I should be grateful if you would draw the following additional points to the Committee’s attention on behalf of the Church of England at their meeting tomorrow. While in the time available there has not been the opportunity to share this letter with other churches and faith groups, its analysis is consistent with the position which they have taken in discussions over recent months.
2. Much of the Committee’s questioning was directed to regulation 7(3) of the Sexual Orientation Regulations. The purpose of this letter is, therefore, to:
– clarify the underlying objectives of the churches and faith groups;
– explain why the original draft regulations caused us such concern;
– consider the question of compatibility with the Directive; and
– explore from our perspective whether regulation 7(3) (together with the corresponding provision in regulation 16(3)) is satisfactory.
Objectives of churches and faith groups
3. The Archbishops’ Council strongly supports creating a legal framework to safeguard basic rights and promote equality. It therefore welcomes the Directive and the regulations necessary to implement it.
4. As the Directive recognises, discrimination on grounds of religious belief raises particular issues for faith communities in relation to their own internal affairs. Religious affiliation is a necessary prerequisite for certain appointments and that is provided for through the genuine occupational requirement exception.
5. Discrimination on grounds of sexual orientation also raises particular issues for faith communities, though the issue is complicated by the varying ways in which the term ‘sexual orientation’ can be used. So far as the Church of England is concerned – and the same would be true for many of the denominations and faiths – there are no circumstances in which we would wish to be able to discriminate against people on the grounds of their sexual orientation as such. We do not have posts or orders where there is a requirement to be of a particular sexual orientation.
6. Nearly all faith communities do, however, have their own belief-based requirements and expectations in relation to sexual behaviour. The nature of these, and the extent to which compliance with them is a condition of appointment or employment, varies a good deal. But in many instances a central place is given to marriage. Thus, for example, those seeking ordination in the Church of England are expected to be either married or sexually abstinent. This is by definition discriminatory since marriage can in the eyes of the church, and the law, be contracted only between a man and a woman.
7. The consistent legal advice we have received is that, given the way the regulations are framed, courts and tribunals applying them will not draw any clear-cut distinction between orientation and behaviour manifesting that orientation. Thus, in an individual case, it would not in practice be open to faith communities to defend successfully the application of a marriage or abstinence policy against a discrimination claim by arguing that the requirement was about behaviour rather than mere orientation.
8. There is, therefore, a need to ensure that the regulations can properly protect gay and lesbian people against discrimination in society, while at the same time protecting religious organisations from litigation which would in effect be challenging the application of their own doctrines and beliefs within their own internal structures.
9. This is not an easy balance to strike. What we would, however, urge the Committee to recognise is that there are genuine issues of religious liberty at stake here.
10. Our objectives in relation to the sexual orientation regulations are, therefore, simply put: to ensure that they do not deny faith communities a broad measure of freedom to determine what requirements in relation to sexual behaviour should apply to those who wish to serve or represent them, even though this might otherwise constitute direct or indirect discrimination in relation to sexual orientation.
11. There are, as the Committee’s questioning explored, some difficult issues here over who should be regarded as serving and representing faith communities and whether similar requirements are reasonable in relation to all of them. For some purposes the Church of England draws a distinction between its ordained priesthood and others. But we do not believe that an exemption in these regulations simply in relation to ministers of religion (including ministers of non-Christian faiths, many of whom are subject to rules on sexual behaviour no less stringent than our own) would be satisfactory. Many denominations, including our own, have large numbers of lay people who occupy key paid roles nationally or locally in the churches and their agencies, and are as a result expected to live in a manner consistent with the teachings of the church.
12. The draft published by the DTI in October made no special provision for faith communities. It would, therefore, have been necessary to rely on the general exception for genuine occupational qualification requirements. During last Tuesday’s evidence, your Committee asked why reliance on regulation 7(2) would not in fact have sufficed. It was suggested that the new regulation 7(3) might be only slightly broader, the implication being that it might not be necessary. We contest that.
13. The difficulty is that regulation 7(2) applies only where being of a particular sexual orientation is a genuine and determining occupational requirement. As explained above, we have no posts or offices where there is a requirement to be heterosexual (or indeed homosexual). Our requirements are in relation to behaviour, not sexuality itself. Regulation 7(2) in the earlier draft and now does not cater for that. That is why the new regulations 7(3) and 16(3) refer to ‘a requirement related to sexual orientation’.
Compatibility with the Directive
14. The rights that the regulations will create for individuals have to be seen within the context of other rights, including the right to freedom of religion. It is important to read Article 4 of the Directive alongside Article 2(5) of the Directive (which states that the Directive is not to prejudice measures laid down by national law which, in a democratic society, are necessary for the protection of the rights and freedoms of others) and with paragraph 24 of its Preamble, which states that the EU “respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States … [and] with this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity”.
15. Those provisions demonstrate, we believe, that the Directive makes it clear – as would be required by the Human Rights Act in any event – that, in implementing it, individual rights have to be balanced against the rights of the churches and other faith groups to religious freedom. In the context of the matters dealt with by the Regulations, we believe this involves protecting the rights and freedoms of churches and religious organisations to set their own requirements about belief and conduct in respect of those who serve and represent them.
16. Against that background, we believe that Regulation 7(3) fully meets the requirements of Article 4(1) of the Directive. It confers an exemption related to a particular type of activity and context (i.e. employment for purposes of an organised religion), fulfils a legitimate objective (i.e. protecting the right to religious freedom) and is proportionate (because, except where religious doctrines are engaged, it is not generally available but only where there are strongly held religious convictions and a conduct requirement is objectively justified by the nature of the employment or office and the context in which it is carried out).
17. Our clear legal advice, including from Sir Anthony Hammond QC (Standing Legislative Counsel to the General Synod and a former Treasury Solicitor and Legal Adviser to the DTI) is that regulations 7(3) and 16(3), which seek to safeguard the application of religious doctrine and strongly held religious convictions, are compatible with the Directive.
Is regulation 7(3) satisfactory?
18. We have our own reservations about the drafting of regulation 7(3) and some other provisions in the sets of regulations. That is why, when they were published, the Bishop of Southwark said that, taken as a whole the regulations represented a considerable improvement on the earlier version, but that we retained “significant concerns over the amount of litigation which the regulations are likely to generate and regret that the Government has not introduced as much clarity in them as we had sought”.
19. We would, therefore, have welcomed a drafting approach which reduced the prospect of uncertain and costly litigation and put beyond doubt the ability of faith based organisations to apply their own conduct requirements.
20. That said, some of the criticisms made of regulation 7(3) seem to us to be driven more by a reluctance to acknowledge the rights and needs of faith communities than by an analysis of the text itself. The test “for purposes of an organised religion” is, for example, clearly an objective one. In addition, the requirement has to be rooted either in doctrine or in strongly held religious convictions, not mere prejudices.
21. The proper legal protection of individual rights, which we support, needs to be consistent with the rights of the churches and other faith groups to religious freedom. That is why these regulations raise important questions for the churches. Sexual ethics have changed rapidly in society in recent years and there are likely to continue to be vigorous debates within many faith groups over how to respond to that development. The central point, however, is that these debates must be for the faiths themselves to resolve. That is something on which the Archbishops’ Council of the Church of England, including our two Archbishops, have been unanimous.
22. In any report which the Committee makes on the regulations we would urge it to make clear that:
– faith groups must not only be allowed to reach their own views on matters of sexual ethics but also have a broad measure of freedom to determine the extent to which those who represent and serve them are required to abide by their teaching;
– a genuine occupational requirement giving effect to this is compatible with the Directive.