Wednesday, 30 December 2009

What Michael Foster really said about the Equality Bill

Additional material added

I wrote earlier about the attacks being made upon this bill. Time now to comment on some of them.

First of all, there were two reports, in the Catholic Herald and in the Telegraph, which tried to put words into the mouth of Michael Foster MP, the Minister of State at the Government Equalities Office.

These were published under strong headlines: Get ready to be sued, Minister tells Christians and Minister predicts legal battles between churches and atheists over Equality Bill were used. In one article it was claimed that

[Foster] admitted that the legislation would open the floodgates to a tide of sexual and religious discrimination cases.

The other version was only slightly less sensational:

[Foster] admitted that the controversial legislation could trigger the launch of religious and sexual discrimination cases against Christian denominations.

I was present at this press conference, the day after the Lords First Reading, and I know that he didn’t say either of those things. The purpose of the conference, limited to the religious press, was to encourage churches to support the bill.

Following a lengthy discussion with all the journalists present about the new definition of the “purposes of an organised religion” in Schedule 9, Clause 2, Paragraph 8, he showed no inclination at all to accept any modification to the existing wording – several suggestions for that were made. He was then asked if he thought it likely that, if the bill passed with the current wording, there would be a challenge to it in the courts.

Here’s what he actually said in reply:

“Both sides will want to be lining up, no doubt. Government is used to the fact that its legislation will be challenged and if we could find the holy grail of avoiding challenge outside of an authoritarian state which says ‘you can’t’, we would. But I think that people feel strongly about these issues. We can’t do anything about that and neither would we want to.”

After which, as reported by the Telegraph, he added:

“I would like to see the churches being more bold. I would like to see the faith groups stand up and be counted for what they think and to challenge secularism, if that’s what they want to challenge. The secularists should have the right to challenge the Church and if the Church’s argument is good enough – which I believe it is – then the Church should win through.”

The Catholic Herald went on to say:

He declined to offer a solution to how conflicting rights of religious freedom of employers and sexual expression of employees, for instance, could be resolved.

Nor did he deny claims made by the Catholic bishops that the Bill would allow non-Christians who work in church premises to sue for victimisation if they were offended by crucifixes on walls. Instead, he said he thought such a scenario “unlikely”, even though an atheist last month successfully sued the Italian government over its policy of having crucifixes in schools.

But in the paper handout issued at the meeting, it says this about the crucifixes issue:

MYTH: Religious organisations that display holy images in the workplace are vulnerable under the Equality Bill.
RESPONSE: Religious organisations are free to display holy images. Some people have suggested that the Equality Bill willl mean that workers will be able to sue religious organisations for harassment because they are offended by religious images ih the workplace. This is just mischief-making.
An example often used is that of a cleaner working in a care home who is offended by crucifixes on the walls - it is completely untrue to suggest that the care home would be required by the Bill to take them down. The cleaner should expect to see these images in a religious organisation.

Additional information

This suggestion first appeared in the briefing on the bill issued last June by the RC Bishops, which said this:

Harassment

9. Harassment is defined as ‘unwanted conduct … with the purpose or effect of violating a person’s dignity, or of creating an intimidating, hostile, degrading or offensive environment’ (clause 24). The burden of proof for this highly subjective definition is reversed in legal proceedings.

10. In relation to religion or belief, the provision is only applicable to employment (clause 37). The practical consequences of this are that a Catholic care home, for example, may have crucifixes and holy pictures on the walls which reflect and support the beliefs of the residents. A cleaner may be an atheist or of very different religious beliefs. Nonetheless if a cleaner found the crucifixes offensive there would be no defence in law against a charge of harassment. To avoid this provision having serious unintended consequences, a test of ‘reasonableness’ is essential.

Posted by Simon Sarmiento on Wednesday, 30 December 2009 at 7:12pm GMT | TrackBack
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Categorised as: equality legislation
Comments

"I was present at this press conference, and I know that he (M.P. Michael Foster) didn't say either of these things. The purpose of the conference, limited to the religious press, was to encourage churches to support the bill,"

Your own statement here, Simon, as someone actually present at the Press Conference, I take to be truly representative of what was said by the M.P. briefing the participants.

From your aticle, one can only presume this is just another case of the deliberate intention of some 'religious' entities who are more interested in their own agenda - to prevent passage of the Bill - than in the objective reporting of what actually was said in support.

We advocates of a more liberal Church need to be made aware of this insidious culture of 'bending the Truth' that so often clouds the real issues.

Posted by: Father Ron Smith on Wednesday, 30 December 2009 at 10:20pm GMT

How then do you explain the Italian experience?

Is their law different? How?

Posted by: Margaret on Wednesday, 30 December 2009 at 10:20pm GMT

@Margaret: A major difference in the Italian case is this: it's about crucifixes in state schools. A state school is not a religious organisation, thus the case is not a good one for supporting the scenario of an atheist cleaner sueing a church-related employer over religious images.

Posted by: Wolf Paul on Thursday, 31 December 2009 at 12:17am GMT

I'm struck by the contrast between Section 8 of Schedule 9 and the final examples given

"8) Employment is for the purposes of an organised religion only if the employment wholly or mainly involves—
(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or
(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)."

and

"Example
• This exception would apply to a requirement that a Catholic priest be a man.
• This exception would not apply to a requirement that a church youth worker or accountant be heterosexual."

Accountant I understand (but suppose said accountant was known to be in an adulterous relationship?), but what do they imagine a church youth worker does? At some point they're surely involved in "teaching doctrine," if only by example. So if a religious community held an 'old-fashioned' perspective on Christian marriage, then said youth worker would not be a good teaching example.

If the recent proposals in Uganda to use state power to target a minority (because what they do is unacceptable to the great majority of 'normal' Ugandans) - and I happen to think it is - then it's equally inappropriate to employ state power to regulate the doctrinal values of religious communities (unless they resort to violent coercion of those who claim membership). Regulate work conditions and minimum wage, by all means, but don't allow the moral values of state or society - whether conservative or liberal - to determine the expression and practice of core belief.

Posted by: Jeremy Bonner on Thursday, 31 December 2009 at 1:42am GMT

Jeremy
It seems to me there are two questions involved here.
One is whether or not this additional paragraph is significantly changing the current law, and there are clearly differences of opinion on that point.
The other is whether the law - as it stands, or as modified - is in some way infringing on religious liberty.
I am going to try to discuss both of these points in subsequent articles.

Posted by: Simon Sarmiento on Thursday, 31 December 2009 at 7:12am GMT

Margaret
There was an excellent article recently in the Tablet about the Italian case which I have been given permission to reproduce here. I will publish that soon.

Posted by: Simon Sarmiento on Thursday, 31 December 2009 at 7:14am GMT

I suspect the context makes it clear, but my earlier posting omitted a clause and should have read:

"If the recent proposal in Uganda to use state power to target a minority (because what they do is unacceptable to the great majority of 'normal' Ugandans) IS INAPPROPRIATE - and I happen to think it is - then it's equally inappropriate to employ state power to regulate the doctrinal values of religious communities (unless they resort to violent coercion of those who claim membership)."

Posted by: Jeremy Bonner on Thursday, 31 December 2009 at 12:32pm GMT

For what it's worth. I think the Telegraph headline was perfectly fair.

Your own quote, that "Both sides will want to be lining up, no doubt. Government is used to the fact that its legislation will be challenged and if we could find the holy grail of avoiding challenge outside of an authoritarian state which says ‘you can’t’, we would. But I think that people feel strongly about these issues. We can’t do anything about that and neither would we want to.”

seems in context unequivocal. He is saying that this legislation will lead to lawsuits, and that the government can't stop that, nor does it want to. It's a reasonable guess that he thinks most of these will come from the aggressive atheist lobby, since they are the ones closest to Labour, and in that case, his reported remarks to the Telegraph also make sense.

“I would like to see the churches being more bold. I would like to see the faith groups stand up and be counted for what they think and to challenge secularism, if that’s what they want to challenge. The secularists should have the right to challenge the Church and if the Church’s argument is good enough – which I believe it is – then the Church should win through.”

Posted by: Andrew Brown on Thursday, 31 December 2009 at 2:08pm GMT

I only described the headlines as strong.

However, I don't agree with your comment about what he was assuming, since the context of the question was who would sue if the bill remained as written. It is the churches, not the "aggressive atheists", who are objecting to the current wording of paragraph 8.
I am personally in no doubt that Michael Foster is a devout Methodist and means it when he says that the churches should challenge the secularists and "should win through".

As a practical matter, there are only two ways, as far as I know, to bring a lawsuit about this. One is to have an actual case at an employment tribunal, the other is to seek judicial review (as in the Amicus case about the 2003 SO regulations).

Posted by: Simon Sarmiento on Thursday, 31 December 2009 at 4:22pm GMT
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