In June, I linked here to the article for the Church Times that I wrote about the latest DTI consultation Getting Equal on outlawing discrimination on grounds of sexual orientation throughout the UK in the provision of goods and services.
Since then, the Roman Catholic Bishops of England and Wales also published their response to the DTI consultation. You can read it here (PDF ) and also the covering letter (another PDF). It is far more restrained in its language than the response from Anglican Mainstream or the even more extreme response of the Lawyers Christian Fellowship.
One specific RC concern is to do with child adoption services. This week, The Tablet has an interesting article which discusses how this issue has been handled by Roman Catholics in the USA: Dilemma of gay adoption by Terry Philpot. (Access to this PDF article is free, but requires registration.)
There is a related news report (only available on the web by subscription) concerning opposition to the anticipated regulations from the Scottish RC bishops on this score. But there is no mention there of the English RC objections which are contained in the document linked above. A Scottish RC press release is here.
The DTI response to the consultation is expected 12 weeks after the closure date of 5 June. That could be next week. This response will then be followed by the publication of draft regulations for parliamentary approval in October.
Last week’s Church Times carried an article with this title. I didn’t write the title, but I did write the article. It is about the most recent proposals for further UK legislation concerning discrimination on grounds of sexual orientation.
The Church of England response which is discussed in the article can be found here (RTF format). The press release about it is here.
The original government consultation document is a PDF file. It is here.
Gluttons for punishment can read the Anglican Mainstream response, also briefly mentioned, here. On the other hand, for a sensible discussion of some of the serious practical issues, particularly with regard to schools, the LGCM response (PDF format) is interesting reading.
Updated 24 December
The Church Times has two reports on this, both can be found at Church studies employment ruling; scroll down for Shiranikha Herbert’s report of the case.
A court case with significant implications for the Church of England (and other UK Anglicans) was decided in the House of Lords this week. Although the case itself concerned a claim alleging sex discrimination in the (presbyterian) Church of Scotland, it could have much wider ramifications in the long term.
The best newspaper reports of this are in the Scotsman and the Guardian.
Scotsman Susan Mansfield and (scroll down) Julie Sabba Ex-minister wins right to sue Kirk for sex discrimination
Guardian Clare Dyer Kirk minister sacked over affair wins right to lodge sex bias claim
Update also Woman ex-minister to sue Kirk over sex ‘bias’ by David Lister in The Times
The full text of the Law Lords ruling is online here:
Judgments - Percy (AP) (Apellant) v. Church of Scotland Board of National Mission (Respondent) (Scotland) and a PDF of this, which may be more convenient because it is some 60 pages long on paper, is here.
Other press coverage:
Observer before the judgement Minister awaits sex bias verdict … against God
The Times/PA News Woman vicar cleared to bring sex claim
Herald She worked for God on high, but her boss is down on earth
BBC Ex-minister wins sex claim fight
The promised regulations altering church legislation have come into force as The Civil Partnership (Judicial Pensions and Church Pensions, etc.) Order 2005. Part 8 of this (scroll down a way) amends all of the following:
Church Property (Miscellaneous Provisions) Measure 1960
Clergy Pensions Measure 1961
Clergy Pensions (Amendment) Measure 1972
Deaconesses and Lay Workers (Pensions) Measure 1980
Pastoral Measure 1983
Pensions Measure 1997
Church of England (Pensions) Measure 2003
An explanatory memorandum is available as a PDF file. See pages 18-20.
See my report of last March on Updating the Sex Discrimination Act reproducing GS Misc 777, which was sent to all General Synod members to inform them about the consultations being held with the government by both the House of Bishops and the Archbishops’ Council and the reasons for needing to make these changes.
The Sex Discrimination Act 1975 has now been amended significantly, by publication of The Employment Equality (Sex Discrimination) Regulations 2005.
This includes inter alia the new version of Section 19 of the 1975 Act. This is the section which enables religious groups to discriminate in certain circumstances. The full text of the new version is reproduced below the fold. It is almost identical to the earlier draft. Note also that it includes references to civil partners as well as to spouses (all of which was in the draft).
The official explanatory memorandum is available as a PDF file. It is a document of 51 pages. The discussion of Section 19 is on pages 26 and 27.
A further DTI explanatory document is available as a Word file. Again the relevant pages are 26 and 27.
The government’s response to the earlier consultation is also available as a Word file. This time the relevant pages are 25 and 26.
New version of Section 19
Clergy
20. —(1) For section 19 of the 1975 Act (ministers of religion etc.) substitute—
“19. —
(1) Nothing in this Part shall make it unlawful to apply a requirement in relation to employment where—
(a) the employment is for purposes of an organised religion,
(b) the requirement is one to which subsection (3) applies, and
(c) the requirement is applied—
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(2) Nothing in section 13 shall make it unlawful to apply a requirement in relation to an authorisation or qualification (as defined in that section) where—
(a)the authorisation or qualification is for purposes of an organised religion,
(b) the requirement is one to which subsection (3) applies, and
(c) the requirement is applied—
(i) so as to comply with the doctrines of the religion, or
(ii) by the authority or body concerned, or by the person by whom the authority or body acts in a particular case, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(3) This subsection applies to—
(a) a requirement to be of a particular sex,
(b) a requirement not to be undergoing or to have undergone gender reassignment,
(c) a requirement relating to not being married or to not being a civil partner,
(d) a requirement, applied in relation to a person who is married, or is a civil partner, that relates—
(i) to the person, or the person’s spouse or civil partner, not having a living former spouse or a living former civil partner, or
(ii) to how the person, or the person’s spouse or civil partner, has at any time ceased to be married or ceased to be a civil partner.”.
(2) Section 6 of the Priests (Ordination of Women) Measure 1993 (No. 2)[1993 No. 2] is repealed.
(3) Regulation 5 of the Sex Discrimination (Gender Reassignment) Regulations 1999[S.I. 1999/1102] is revoked.
The Cash section of today’s Observer has an article by Jon Robins on clergy and UK employment law:
Doing God’s work, but denied rights as employees.
As the article makes clear, the issues are not specific to the Church of England, but affect clergy of all religious bodies.
Update Tuesday
Here is a good critique of this newspaper report: Get a Clue
According to Christopher Morgan of the Sunday Times the Church of England will respond to the issue of clergy who wish to enter into a Civil Partnership in the following manner:
Church to let gay clergy ‘marry’ but they must stay celibate
HOMOSEXUAL priests in the Church of England will be allowed to “marry” their boyfriends under a proposal drawn up by senior bishops, led by Rowan Williams, the Archbishop of Canterbury.
The decision ensures that gay and lesbian clergy who wish to register relationships under the new “civil partnerships” law — giving them many of the tax and inheritance advantages of married couples — will not lose their licences to be priests.
They will, however, have to give an assurance to their diocesan bishop that they will abstain from sex. The bishops are trying to uphold the church doctrine of forbidding clergy from sex except in a full marriage. They accept, however, that the new law leaves them little choice but to accept the right of gay clergy to have civil partners.
The decision is likely to reopen the row over homosexuality that has split the worldwide Anglican communion. It may also overshadow an international meeting of senior bishops next month designed to heal rifts between liberals and conservatives over the issue.
The Lesbian and Gay Christian Movement estimates that within five years 1,500 homosexual Anglican clergy will have registered under the new law, which comes into force on December 5.
The Church of England proposal is contained in a draft Pastoral Statement on Civil Partnerships, drawn up by Graham James, the Bishop of Norwich. It was discussed at length and provisionally agreed at a meeting last week at a hotel in Market Bosworth, Leicestershire.
A final draft with some amendments will be produced for approval by the House of Bishops, the upper house of the church’s General Synod.
Under the proposal, a priest intending to register a civil partnership would inform his or her bishop in a face-to-face meeting. The priest would then give an undertaking to uphold the teaching of the Church of England, outlined in the 1991 document Issues in Human Sexuality. This paper prohibits sex for gay clergy.
Although no sanctions are included in the new proposal, it is expected that a breach of the rules may lead to disciplinary action or the possible suspension of clergy.
Some bishops, however, are uncomfortable about subjecting their priests to the proposed interviews.
One said this weekend: “We all have clergy in gay partnerships in our dioceses and there is a genuine reluctance on the part of a number of us to make their lives more difficult.”
…The bishops have also agreed to a government request to change ecclesiastical law to favour civil partners. A change to the Pluralities Act of 1838, for example, will enable gay partners to occupy vicarages for up to two months after the death of a priest.
This matter was the subject of questions at the General Synod in February, and the answers were published exclusively on TA here. The Civil Partnership Act can be read in full here.
The government is also proposing to amend the Employment Equality (Sexual Orientation) Regulations 2003. Clause 3 (defines the meaning of discrimination on grounds of sexual orientation) and Clause 25 (benefits dependent on marital status) are the sections affected. The purpose of the first of these amendments, which would add a new sub-clause 3.3, is explained thus:
Purpose and effect
1. The purpose of this new provision is to make it clear that, for the purposes of the Employment Equality (Sexual Orientation) Regulations 2003, the status of a civil partner is comparable to the status of a spouse. The effect is to enable a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination under the Sexual Orientation Regulations. New paragraph 3(3) prevents the discriminator from being able to say, by way of defence, that being married is a material difference to being a civil partner. The discriminator would have to show that the married person and the civil partner were not in a comparable position for some other reason, for example, that they were doing different jobs.
2. An employer etc would not be able to justify less favourable treatment of a civil partner as compared to a spouse in similar circumstances unless he could show that being heterosexual was a genuine occupational requirement (GOR) of the job within the meaning of reg 7(2). The additional GOR exception in reg 7(3) for employment for purposes of an organised religion permits an employer to apply a requirement “related to sexual orientation” (rather than to be a particular sexual orientation). It may therefore permit a narrow range of employers, such as religious organisations, to require that an employee be married (rather than a civil partner) but only where such a requirement is necessary to comply with the doctrines of the religion, or because of the nature and context of the job, to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers. It is likely that these defences will only be available in a very limited number of circumstances.
The proposed wording of the clause is as follows (the consultation is now closed and this might change when the proposal is formally published for parliamentary approval):
New regulation 3(3)
3. Discrimination on grounds of sexual orientation
“(3) For the purposes of paragraph (2), in a comparison of B’s case with that of another person the fact that one of the persons (whether or not B) is a civil partner while the other is married shall not be treated as a material difference between their respective circumstances.”
On 7 March the Department of Trade and Industry published a consultation document and draft regulations to amend the Sex Discrimination Act 1975 (SDA) in order to bring it into line with the Equal Treatment Directive which comes into force in October. Amongst many other changes the proposals will alter the circumstances in which sex discrimination is legal in the Church of England.
The most important consultation documents can be downloaded from the website of the DTI’s Women and Equality Unit.
consultation document
executive summary
draft regulations
These and other documents are linked from here including the response form. Unfortunately this Word document uses the font Univers55; if you do not have this font installed on your computer you might find the document unintelligible. The consultation period ends on 31 May 2005.
The proposed changes include the repeal of section 6 of the Priests (Ordination of Women) Measure 1993. The DTI view is that this section is too widely drawn. In its place a new section 19 of the SDA would still allow discrimination in certain circumstances, and would be applied equally to all religious bodies.
General Synod members have been sent a paper outlining how the proposed changes will affect the Church of England, and giving the text of the proposed new section 19 of the SDA. I have copied this paper below the fold.
GS Misc 777
UPDATING THE SEX DISCRIMINATION ACT
On 7 March the Department of Trade and Industry published a consultation document and draft regulations to amend sex discrimination legislation in order to bring it in line with the Equal Treatment Directive which comes into force in October. With the consent of the Archbishops’ Council and House of Bishops the draft regulations include the proposed repeal of section 6 of the Priests (Ordination of Women) Measure 1993.
The background is that when the 1993 Measure was being prepared there was some doubt whether the ‘mixed economy’ which the Church of England proposed to put in place in relation to women priests would be compatible with the exemption provided by section 19 of the Sex Discrimination Act 1975. Under that section employment, authorisation or qualification for purposes of religion can be limited to one sex ‘to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers’.
As a result, with the agreement of the Synod and Parliament, section 6 was included in the 1993 Measure. It is very widely drafted and effectively provides that women cannot in any circumstances bring a case under the Sex Discrimination Act in relation to ordination, licensing or appointment within the Church of England. The view of the DTI is that such a widely drawn exemption would not be compatible with European law once the Equal Treatment Directive came into effect this October.
The proposals that the DTI published on 7 March involve both the repeal of section 6 of the 1993 Measure and the substitution of a new section 19 of the Sex Discrimination Act. The net effect will be to extend protection against discrimination while ensuring that the measure of freedom that all churches and faiths need when matters of doctrine and religious belief are engaged is not unreasonably circumscribed. The welcome consequence is that we shall return to the situation which obtained between 1975 and 1993 when all churches and faiths were subject to the same provisions of the law of the land: there will no longer be a special Church of England exemption.
The proposed new section 19 is of particular importance because the new regulations will, for the first time, make express provision to bring office holders within the protection against discrimination provided by the 1975 Act Since clergy in most denominations and faiths are not employed it has, up to now, been the authorisation and qualification provisions of the Act which have been most relevant, for example in relation to the selection of individuals for the ordained ministry. The express extension of the anti-discrimination provisions from employment to office holders will make all churches and faiths groups vulnerable to challenge in relation to appointment decisions in a much wider range of circumstances, save where the section 19 exemption applies.
I attach a copy of the proposed new section 19. It defines in relation to gender, gender reassignment, marital status and history and civil partnership the circumstances in which churches and other faiths may apply requirements which would otherwise be contrary to the Sex Discrimination Act.
A full copy of the consultation document - ’Updating the Sex Discrimination Act’ - and the draft regulations (which cover a wide range of other matters) is available on the DTI website. The consultation periods ends on 31 May and the expectation is that Parliament will be invited to approve regulations before the summer recess.
If Synod members require further clarification Stephen Slack or I will do our best to help.
William Fittall
Secretary General
Church House
Westminster SW1P 3NZ
16 March 2005
Proposed new section 19 of the Sex Discrimination Act 1975
19.—(1) Nothing in this Part shall make it unlawful to apply a requirement in relation to employment where -
(a) the employment is for purposes of an organised religion;
(b) the requirement is one to which subsection (3) applies; and
(c) the requirement is applied –
(i) so as to comply with the doctrines of the religion, or
(ii)because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(2) Nothing in section 13 shall make it unlawful to apply a requirement in relation to an authorisation or qualification (as defined in that section) where -
(a)the authorisation or qualification is for purposes of an organised religion;
(b) the requirement is one to which subsection (3) applies; and
(c) the requirement -
(i) is applied so as to comply with the doctrines of the religion, or
(ii)is applied by the authority or body concerned, or by the person by whom the authority or body acts in a particular case, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers.
(3) This subsection applies to -
(a) a requirement to be of a particular sex;
(b) a requirement not to be undergoing or to have undergone gender reassignment;
(c) a requirement relating to not being married or to not being a civil partner;
(d) a requirement, applied in relation to a person who is married, or is a civil partner, that relates—
(i) to the person, or the person’s spouse or civil partner, not having a living former spouse or a living former civil partner, or
(ii) to how the person, or the person’s spouse or civil partner, has at any time ceased to be married or ceased to be a civil partner.
A number of questions were asked about matters relating to the Civil Partnership Act 2004 and other Employment Equality legislation. The full text of these Questions and Answers is below the fold.
Only the first of these questions was answered in tonight’s session, and no supplementary question was put. The other answers are available only in written form.
News reports specifically about this matter:
Yorkshire Post Bishop signals church pensions for gay clergy’s partners
Telegraph Gay priests’ lovers to get pensions
Q 27 The Revd Paul Collier (Southwark) to ask the Chairman of the Ministry Division:
Will the Church of England follow the example of the Scottish Episcopal Church and commit itself to giving pension rights to registered same-sex partners of clergy equal to those enjoyed by clergy spouses when the new law comes into effect in November of this year?
Answer by the Bishop of Ripon and Leeds (Chairman of the Deployment, Remuneration and Conditions of Service Committee)
The Civil Partnerships Act 2004 imposes obligations on all pensions schemes to provide a certain level of benefits to Registered Civil Partners of scheme members. The Church of England’s pensions schemes are affected by this legislation in the same way as any other scheme. The Government has still to make detailed regulations under the new Act, and we shall not be able to provide a comprehensive statement on the implications of the new legislation until we have had the opportunity to study those and work through the implications.
Q68 The Revd Stephen Coles (London) to ask the Chairman of the Archbishops’ Council:
Given that the Church of England seems gradually to be bringing the position of the clergy into closer line with that of other comparable professions and secular legislation in general, how are we to justify continuing to demand different procedures when there are issues regarding termination of office and discrimination on the grounds of sexuality?
Answer by the Bishop of Chelmsford on behalf of the Archbishops’ Council:
Acceptance of many of the features of secular legislation does not mean that the Church should cease to have its own arrangements for clergy discipline. Indeed this Synod and Parliament have only recently approved the new system of clergy discipline which is to come into operation at the end of this year. All that the Church has sought in relation to the sexual conduct of its clergy is that it should, like other denominations and faiths, remain free to debate and set its own requirements rather than have them externally imposed by the secular authorities.
Q70 The Revd Paul Collier (Southwark) to ask the Chairman of the House of Bishops:
In order to enable the Church to listen to the experience of lesbian and gay clergy and church members, will the House of Bishops make a declaration that no-one will face reprisals for speaking honestly about their experience?
Answer by the Bishop of Chelmsford as Chairman of the Bishops’ Committee for Ministry
Introducing the language of ‘reprisals’ into this sensitive area is not helpful. Let us instead be agreed that it behoves all with pastoral responsibilities in the Church to enable its members to ‘speak the truth in love’ [Ephesians 4:15]. All the Churches of the Anglican Communion are bound to take seriously the 1998 Lambeth Resolution 1.10 (c) which specifically called for such listening in respect of homosexual persons.
Let us also be agreed, as the draft Ordinal reminds us, that clergy of the Church of England are expected to ‘fashion their lives according to the way of Christ’ and to ‘accept the discipline of the Church’ [p.29 of GS 1535A].
Q78 The Revd Stephen Coles (London) to ask the Chairman of the House of Bishops:
If a member of the clergy decides to contract a civil partnership with a member of the same gender once this becomes possible in the foreseeable future, how will this affect their office within the Church of England?
Q79 The Revd Anthony Braddick-Southgate (Southwark) to ask the Chairman of the House of Bishops:
What advice has the House received regarding how the registration of civil partnerships will compel the Church of England to recognize same-sex relationships for the purposes of employment practices and occasional offices such as funerals?
Q80 The Revd Anthony Braddick-Southgate (Southwark) to ask the Chairman of the House of Bishops:
Has the House of Bishops come to a mind or given any guidance on whether clergy who register a civil partnership will be subject to any disciplinary proceedings?
Answer by the Bishop of Norwich as Chairman of the House’s Civil Partnerships Sub-Group
With permission, I should like to answer the question from Mr Coles and the two questions from Mr Braddick-Southgate together.
The group which I chair is considering the issues raised in these questions. We shared our initial thinking with the House in January and are aiming to complete our report for its meeting in May. The intention is to issue a Pastoral Statement for the guidance of clergy and others well before the first civil partnerships become possible when the Civil Partnerships Act comes into force at the end of this year or early next.
What follows is a portion of the 8th Adullam Homes Housing Association Annual Lecture, given to an invited audience at Keele University. Adullam was established in 1972. It offers accommodation and support to some of the most marginalised, vulnerable and at risk people in our society.
This was reported briefly in the Guardian as Bishop gives warning on equality law.
I hear rumours that as faith based bodies revisit their employment and recruitment policies, partly in the light of the recent implementation of directives outlawing discrimination on grounds of religion or sexual orientation, a number are coming up with a maximalist position. The claim is that every board member, and in some cases every employee, must be firstly an adherent of the particular faith and secondly satisfy additional requirements regarding sexuality.
I want to stick my neck out and say that I find this trend quite alarming. I urge those who are giving consideration to this specific point to be aware of a number of risks in that approach:
i. Confusing the faith with the values.
When we substitute adherence to the tenets of a particular faith group for commitment to a set of values or ethos we risk losing the latter. Despite all the evidence from the fall out over homosexuality and bishops last summer many religious people retain a touching and naïve belief that the person next to them holds the same values as they do themselves. In some cases it may be fear of discovering otherwise rather than simple naivety.
ii. Excluding valuable contributions.
Some years ago I heard of the formation of a new body to support Christians engaged in the Housing world. When I approached it I found that I was only eligible for membership if I could subscribe to a particular understanding of the doctrine of salvation. I still fail to see the connection. Narrow religious requirements inevitably limit the range of views and perspectives that an organisation can bring to the task of working out its values. Some of the best board and senior staff members of Christian organisations I know are those who stand sympathetically but outside the church structures and can ask the rest of us the sharp questions.
iii. Avoiding or abusing the law undermines the policy of exemptions. Government rightly continues to give faith based organisations scope to claim exemption from aspects of equalities legislation. But when I hear rumours of substantial organisations claiming that every staff member has a “Genuine Occupational Requirement” to be an adherent of a specific faith I fear we are stretching the law to breaking point. If we are seen to be exploiting loopholes in order to operate policies that discriminate widely on grounds of religion or sexuality then we are likely to find the law tightened up so that we lose the exemptions that are justifiable.
iv. Discrimination contravenes our values.
Most faith based agencies have somewhere in their list of core values that they take equalities issues seriously. To suddenly resort to special pleading diminishes that commitment.
v. Inconsistent application of exemptions is illegal.
This is particularly relevant to the exemptions organisations make claim on grounds of sexual orientation. The legal advice published on the Church of England website makes it clear to me that the Christian ethic here is about the restriction of sexual activity to marriage. Any organisation that seeks to exclude gay employees whilst condoning or ignoring extra-marital heterosexual activity could find itself on very shaky ground.
vi. It isn’t necessary.
There is nothing that we want to achieve that cannot be achieved through having a clear core of faith adherents who take responsibility for the carrying forward of the vision both at board and senior management level. Moreover it is in the very nature of faith based organisations that they will tend to attract at all levels of staff those who are adherents of the faith in question. To revert to biblical imagery, there is plenty of leaven in the lump.
Today the Church Times breaks the news that somebody has produced a handbook to help organisations avoid having to employ non-Christians.
Bill Bowder’s story is headlined How to employ only Christians - a guide.
I’m sending off for a copy of this book immediately.
Here is some more background in a 6 June press release from the Evangelical Alliance.
On 8 May, a letter was sent to members of the Council, members of the House of Bishops, and Diocesan Secretaries, reporting what had been achieved by Church House staff in their negotiations with the government about the Employment Equality Regulations. The full text of this letter appears below.
Analysis real soon now :-)
Members of the Archbishops’ Council
Members of the House of Bishops
Diocesan Secretaries
8 May 2003
EMPLOYMENT EQUALITY REGULATIONS
The Government is today publishing regulations to implement the European Equal Treatment in Employment and Occupation Directive agreed in 2000. The expectation is that the regulations will be debated and voted on in each House of Parliament before the summer recess. There will be no ability to move amendments. Provided they are approved, the regulations will come into force on 1 December. The Government will be producing further guidance on the regulations in due course and we shall look to see whether there is any material we might usefully produce from here to supplement that. The purpose of this note is to provide an initial explanation of what the regulations will mean for us and what line we are taking publicly on them.
Background
The Directive required EU governments to outlaw discrimination in employment on grounds of sexual orientation, religious belief, disability and age. The deadline for implementation is December this year in respect of sexual orientation and religion and December 2006 in relation to disability and age. Under the separate Race Directive, governments also have to introduce adequate protection against racial discrimination in employment by July 2003, though given the extensive anti-discrimination legislation already in force in this country, the need for amendment is very limited.
The Government published draft regulations last October. The Archbishops’ Council’s response of 23 January voiced the Church of England’s ‘strong support for creating a legal framework to safeguard basic rights and promote dignity, equality and respect for all members of society … The general point to underline is that we want to be in a position where we can encourage our own members to contribute to the development of best practice in this important area of our social life. The best context for this will be one in which there has not been a difficult and polarising public debate about the extent to which the regulations respect the doctrinally-based needs of the Churches and other faith-based communities.’
The Archbishops’ Council identified five concerns about the initial draft of the regulations. Subsequently we also leant support to a point raised by the Catholic Bishops’ Conference about the impact of the religious discrimination regulations on the admission policies of Catholic sixth form colleges.
Over the past few months we have, in partnership with our Roman Catholic colleagues, had a series of exchanges and meetings with DTI officials. In addition the Bishop of Southwark together with Archbishops Vincent Nichols and Peter Smith met the Equality Minister, Barbara Roche, last week.
Overview
Our assessment of the progress we have made is summed up in the on the record statement by the Bishop of Southwark which our Communications Unit are using in response to enquiries. Others approached for public comment may want to draw on this:
The regulations which the Government has published today represent a considerable improvement on last autumn’s consultation document. The Government has listened to representations from the Churches and we welcome that. Nevertheless we retain 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. 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 must include the ability to set our own requirements about belief and conduct in respect of those who serve and represent us. We shall be closely monitoring the implementation of the regulations.
Detail
The position we have reached on the six points raised with the Government is as follows.
As with other anti-discrimination legislation, the Employment Equality (Religion or Belief) Regulations permit discrimination in certain circumstances. In particular, where an employer has an ethos based on religion or belief discrimination would be lawful where, ‘having regard to that ethos and to the nature of the employment or the context in which it is carried out, being of a particular religion or belief is a genuine occupational requirement for the job, and it is proportionate to apply that requirement in the particular case’. This provision was already in the draft regulations published last autumn in relation to recruitment and promotion but not in relation to dismissal, even where someone had abandoned their religious allegiance. The Government has accepted our representations on this point and amended the Regulations so that dismissal is now possible.
We also pressed the Government to be more precise about when an organisation can be said to have ‘an ethos based on religion or belief’ and to stay closer to the wording of the Directive in defining what constitutes harassment (whether in relation to religious belief or sexual orientation). The Government resisted our representations on these two points. Much, therefore, turns on how the courts interpret these provisions in practice.
An additional point in relation to religious discrimination concerns the ability of faith-based sixth form colleges to take religious affiliation into account in their selection policies. The Regulations do not affect schools admission policies generally, so the existing DfES approved policy framework on faith schools remains in force.
The Regulations do, however, outlaw religious discrimination in relation to the provision of vocational training except where that is in preparation for posts which themselves carry a genuine occupational requirement (eg training Catholics to teach in Catholic Church schools). Although sixth form colleges are, in law, schools, they are also regarded as providers of vocational training. The effect of the Regulations, therefore, is that schools, including those with sixth forms, will be able to continue with their present admissions policies, which take religious affiliation into account in certain circumstances. But sixth form colleges will no longer be able to do so. There are a number of Catholic (but no Anglican) sixth form colleges.
We have agreed with our Catholic colleagues that this is an anomaly and supported their efforts to secure a change in the Regulations. The Government has, however, resisted this. The Catholic bishops are likely to continue to protest about this.
We had raised a small point in relation to a proposed amendment to the exemption for charities in section 34 of the Race Relations Act 1976. We feared that this might restrict the work of religious charities focused on a particular ethnic group (for example the Church’s Ministry among the Jews). In the light of our representations the Government has adopted a different drafting approach which, we believe, meets the nub of our concerns.
The final and most difficult issue has been the implications of the draft Sexual Orientation Regulations for ourselves and other Churches and faith groups. The nub of the difficulty here is that the courts are most unlikely to make any clear distinction between orientation and behaviour. There was therefore a substantial risk that the Regulations would encroach on the freedom which all religious organisations need to determine their own conduct rules in relation to those who work for and represent them. Our concerns were shared by a number of other Churches and by the Inter-Faith Network.
The Government has moved to meet these concerns, though by adopting a different drafting approach from the one which we advocated. The Sexual Orientation Regulations now include a provision in relation to employment or professional or trade qualification ‘for purposes of an organised religion’. In such circumstances it will continue to be lawful to apply a requirement related to sexual orientation - (i) so as to comply with the doctrines of the religion, or (ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly-held religious convictions of a significant number of the religion’s followers’.
We have had long and difficult discussions with government officials over the phrase ‘for purposes of an organised religion’. It will clearly provide a much greater degree of protection in relation to Church posts and officers than the earlier draft of the Regulations. But it remains to be seen how precisely the courts will interpret it, for example in relation to Church schools and other Christian organisations.
It is because of this lack of clarity and the risk of contentious and costly litigation, that our welcome for the changes which the Government has made is somewhat qualified.
WILLIAM FITTALL
In my earlier analyses of the Sexual Orientation Regulations, I failed to report that in addition to Clause 7(3), there is a further special exemption for “organised religion” at Clause 16 which deals with Qualifications Bodies. Clause 16(3) reads:
(3) Paragraph (1) does not apply to a professional or trade qualification for purposes of an organised religion where a requirement related to sexual orientation is applied to the qualification so as to comply with the doctrines of the religion or avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
I’m not entirely clear what this is intended to refer to as far as the Church of England is concerned. Is ordination to be considered as a trade qualification?
The DTI guidance note says:
48. Regulation 16(3) provides an exception in relation to qualifications for purposes of an organised religion, which is similar to the exception in regulation 7 (see above), and to section 19 of the SDA. Where a qualification is for purposes of an organised religion, it allows the body to apply a requirement related to sexual orientation so as to comply with the doctrines of the religion or avoid conflicting with followers’ religious convictions. This could apply to qualifications required to be a minister of a particular religion, for example, to the extent that such a position constitutes a profession or trade for the purposes of regulation 16. Regulation 16(3) is consistent with Article 4.1 of the Directive, although it does not copy out its wording. This is because a requirement which meets the criteria defined in regulation 16(3) is necessarily a genuine and determining occupational requirement which is applied proportionately, within the meaning of Article 4.1.
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
London SW1
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.
Conclusion
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.
WILLIAM FITTALL