Updated again Tuesday afternoon
Adam Wagner has written at the UK Human Rights Blog that the Catholic Care gay adoption rejection boosts equality protection.
The Charity Commission has rejected a bid by a Catholic organisation to amend its charitable objects in order to restrict its adoption services to heterosexuals. The case highlights the significant protections which have been put in place by recent equality law, and the policing role which the Charity Commission is required to play from a human rights perspective…
Martin Pendergast has written at Cif belief that the Catholic gay adoption ruling is a victory for vulnerable children
Neither the pope nor the bishop of Leeds are likely to go as far as Cardinal Sandoval, the Mexican who this week accused civic authorities of bribing the courts. But they will not be at all happy about the charity commission’s rejection of Leeds-based Catholic Care’s application to restrict adoption to heterosexual couples. Lesbian and gay Catholics and many other members of the church will be delighted that this attempt to institutionalise discrimination has been defeated.
Altering charitable objects to avoid compliance with legislation was deeply offensive to many Catholics, and not just lesbian and gay people. Catholic values dictate that a childcare service should do its utmost to find loving homes for the children it exists to serve. If a majority of other Catholic childcare agencies in England and Wales found it possible to comply with the law, why not Leeds? Other agencies lost neither financial nor moral support from their Catholic populations. There was never any evidence that Catholic Care would be any different…
Virginia Ironside has written in the Independent The Catholic Church should stay out of the gay adoption debate.
Sunday update
Paul Vallely has written in the Independent on Sunday Talking over the heads of children.
The Roman Catholic Church and the equality lobby are both wrong: the rights of would-be adopters do not come first.
Monday update
Neil Addison Catholic Care An attack on the idea of Charity
…Also the Commission has dealt a blow to the idea of Charity itself which is the free giving by individuals and organisations to help others. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to adoption services that serve only heterosexuals, or adoption services for homosexuals, or disabled people or black or white people what right does the government have to interfere with that choice?
The provision of adoption services is a good thing in itself and a charitable purpose and for that reason alone should surely have been permitted even if the Commission felt that the services were provided on too limited a basis. The Commission seems to have regarded Charitable status as a favour granted by itself rather than as a good thing to be encouraged. This decision by the Charity Commission has, quite rightly been criticised as an attack on religious freedom but I would go further it is an attack on freedom itself. If individuals, churches and organisations do not even have the right to choose how to give away their own money then freedom itself ceases to exist.
Tuesday Update
Third Sector reports that Catholic Care considers appeal against Charity Commission over gay adoption
See earlier reports on this case, here, and also here.
Civil Society reports on the latest decision:
The Charity Commission has again ruled that Catholic Care (Diocese of Leeds) may not change its objects in order to exclude homosexual couples from accessing its adoption services.
Despite being told in March by the High Court to reconsider, the Commission has stood by its original decision, arguing that there are not “particularly convincing and weighty reasons justifying the proposed discrimination”.
Speaking about the judgement, the Commission’s chief executive Andrew Hind, said: “In certain circumstances, it is not against the law for charities to discriminate on the grounds of sexual orientation.
“However, because the prohibition on such discrimination is a fundamental principle of human rights law, such discrimination can only be permitted in the most compelling circumstances.
“We have concluded that in this case the reasons Catholic Care have set out do not justify their wish to discriminate.”
Read the news reports:
Guardian Riazat Butt Catholic adoption agency loses bid to bar gay parents from service
Telegraph Martin Beckford Last Catholic adoption agency faces closure after Charity Commission ruling
BBC Catholic charity’s appeal over gay adoption fails
Press Association Bid to block gays adopting fails
Associated Press UK: Adoption charity can’t ban gay couples
Third Sector Charity Commission refuses to change Catholic Care gay adoption decision
Press releases from the principals:
Charity Commission
Catholic charity ‘may not restrict its adoption service’, says Charity Commission
Summary of Decision
Full Document (PDF)
Catholic Care
PRESS STATEMENT : 18th August 2010
The Equality Act 2010 amends the Civil Partnership Act 2004 so as to remove provisions in the Civil Partnership Act 2004 that prevent all ‘religious premises’ being approved for the registration of civil partnerships.
See here for the wording of the amendment, and also see this earlier article for some explanations of the wording.
At the time these amendments were passed, the Church of England which had earlier issued this statement, then also said, as I reported in the Church Times :
A spokesman for the Archbishops’ Council confirmed on Wednesday that the amendment took account of discussions held with the Government. The Church of England’s concern, he said, was to ensure that the regulations provided for an opt-in or opt-out at denominational level. The C of E (and other denominations) wanted to be able to nominate a national body to declare a position on this issue, before individual applications could be made. This was what the Quakers themselves had done (Comment, 12 March).
The government is now holding consultations with “interested parties” in preparation for implementing such provisions. As a recent Government document [PDF] said:
An amendment made to the Equality Act 2010 makes it possible to remove the express prohibition on civil partnerships taking place in religious premises. We want to talk to those with a key interest in this issue about what the next stage should be for civil partnerships, including how some religious organisations can allow same-sex couples the opportunity to register their relationship in a religious setting if they wish to do so.
And on 20 July, the following written answer was given in the House of Commons:
Civil partnership and civil marriage registrations are entirely secular in nature and prohibited from taking place on religious premises or containing any religious language, or religious music.
An amendment made during the passage of the Equality Act 2010 removed the express prohibition on civil partnership registrations taking place on religious premises. In response to this amendment, the Government committed to talking to those with a key interest in this issue about what the next stage should be for civil partnerships. This will include consideration of whether civil partnerships should be allowed to include religious readings, music and symbols. This commitment was made clear in the Government’s published document ‘Working for Lesbian, Gay, Bisexual and Transgender Equality’, published on 16 June 2010.
We will begin this exercise before the summer parliamentary recess.
There are reports of these consultations, which show that some groups are now looking for rather more from the new Coalition government than they were from the Labour one:
The Independent yesterday carried a report that the Liberal Democrat conference next month would consider adopting a new policy, see Lib Dems to vote on full marriage rights for gay couples.
In England, James Kirkup reported in the Telegraph that ‘Gay couples will get equal right to marry’.
Simon Hughes, the Lib Dem deputy leader, said that the Government will allow same-sex couples to have “civil marriage” with same legal status as marriage between a man and a woman.
His comments follow moves by a Lib Dem minister to allow homosexual couples to have religious elements to their civil partnership ceremonies.
Under current rules, same-sex couples can contract a civil partnership, which is recognised in law but not given the same status as marriage for a heterosexual couple.
Mr Hughes predicted that before the next general election, the law will be changed to give an equal right to full marriage…
In Scotland, Rebecca McQuillan in the Glasgow Herald reported on a Fresh call for gay marriages to be legalised
It might be marriage in all but name – but now campaigners want to end that final inequality in gay partnerships.
Senior churchmen and a cross-party coalition of MSPs are demanding a change in the law in Scotland to give same-sex couples full marriage rights.
Polling evidence suggests a majority of Scots would back the move…
And there was also a leader article, Same-sex couples should be afforded equality of treatment.
The following day the same reporter wrote of Roman Catholic reaction, Bishop on same-sex marriage: not now, not ever…
The Catholic Church will never celebrate same-sex unions – “not now, not in the future, not ever” – even if the law changes to allow religious celebrants to conduct gay marriages, the Bishop of Paisley, Philip Tartaglia, has told the Prime Minister…
The Irish Civil Partnership Bill was signed into law by the President of the Republic yesterday. The bill was passed without a vote in the Dail (the lower house of the Irish parliament) and was supported in the Seanad (Senate) with only 4 dissenting votes, out of 52.
Irish Times Signing into law of new civil Bill welcomed
Some earlier reports:
According to RTE in this report Civil Partnership Bill passes the Seanad:
The Seanad rejected, without a vote, an amendment that would have allowed Registrars opt-out of presiding over civil partnership ceremonies.
The so-called ‘conscientious object’ amendment had been tabled by Independent Senator Rónán Mullen, however the matter was not put to a vote because not enough Senators called for one.
Senators spent three hours discussing the amendment, in total there were 77 amendments down for discussion.
Irish Times Bill’s success shows ‘society’s maturity’ and ‘Historic advance’ for equality as Civil Partnership Bill passed.
A recent UK Supreme Court case concerned the deportation of gay asylum seekers. As the UKSC blog explained:
Under the Convention on the Status of Refugees, members of particular social groups (which can include groups defined by their sexual orientation) are entitled to asylum where they can establish they would face a well-founded fear of persecution if they returned to their home states. The issue concerned the extent to which those who seek asylum will, if returned to their countries of origin, be able to conceal, or at least be discrete about, characteristics of themselves which give rise to the fear of persecution. The Supreme Court unanimously overturned the Court of Appeal’s decision that it was permissible to return a person if they would conceal their sexuality in order to avoid being persecuted, provided their situation could be regarded as “reasonably tolerable”. To compel gay people to pretend their sexuality does not exist is to deny him his fundamental right to be who he is. Simple discriminatory treatment does not give rise to protection under the Convention, but the Convention does not envisage applicants being returned to their home country “on condition” they take steps to avoid offending their persecutors.
The full judgement is available here.
Aidan O’Neill has written Some Reflections on Religion, Sexuality and the Possible Transatlantic Implications of the HJ (Iran) v. Home Secretary [2010] UKSC 31
In HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31 the UK Supreme Court held that gay people cannot properly be required or expected under international asylum/refugees to conceal their sexuality/pass as straight to avoid State sponsored but usually religiously inspired persecution in their home countries. The central point about the UKSC decision is that the court rejects the cogency of any distinction between acting on one’s sexual orientation and being of a particular sexual orientation. It was argued by the Home Office that it could properly send back avowedly gay men to Iran and Cameroon respectively on the basis that, if they were to be discreet (not – openly – act on their sexual orientation) they would not invite persecution…
He goes on to review some American legal comment on the decision, and concludes:
…what seems to concern the Professor and what he seems to be driving at, is a suggestion or feeling that the specifically religious motivation for discriminatory attitudes and practices resulting in State persecution, should be worthy of some respect and deference from the courts. But his objection to Lord Hope’s use of the word “misguided” itself seems to be misguided, in that it is clear from the passage quoted that Lord Hope was not there seeking to make any theological point, or to suggesting that the anti-gay views expressed were not in fact true expressions of the particular religious beliefs described. Rather the tenor of the whole court’s decision in HJ (Iran) is that those religious beliefs when acted upon are morally wrong because inimical to the proper respect for individual human dignity that is incumbent upon all States and societies.
The (anti-relativist) realization that there are absolute moral values (captured in the concept of “human rights”) which are not culturally relative or religiously specific and which States and societies and religions must protect and promote in order to have legitimacy is a post WW11/post-Nuremberg phenomenon common to the political/legal cultures of the civilised world. An expression by the court that the actions by another State or significant religious or cultural or political non-State institutions within that state contravene fundamental human rights is very much the province and duty of the judge. There is no usurpation of power in the judges so doing in this particular case.
The following article appeared in the Church Times on 11 June 2010.
Equality Law will affect church appointments
by Simon Sarmiento
THE Equality Act 2010 will apply to all Crown appointments of clergy when it comes into effect later this year, probably in October.
Until now, anti-discrimination law has not covered clerical office-holders in the Church of England. But the definition of “public office” in the new Act will bring within its scope all posts to which appointment is made on the recommendation of a minister of the Crown.
Another category of posts defined in the Act is that of “personal office”-holders. But a Church House spokesman said last month that “That definition probably applies only to stipendiary curates. It does not apply to incumbents or priests-in-charge who are not ‘appointed to discharge a function personally under the direction of another person’.”
One consequence of this change is that legislation to allow women bishops in the C of E will need specific provisions to widen the existing exemptions. As the revision committee’s report explains: “essentially, the Equality Act provides . . . that a person can be excluded from consideration for appointment to a public office altogether on the grounds of sex,” but would not “allow a woman to be appointed a diocesan bishop but on the basis that . . . she would refrain from carrying out certain functions herself (because of her sex)”.
This is not the case under the current Sex Discrimination Act 1975, which contains an express exemption in wider terms for ministers of religion. Modifications made to this exemption in 2005 included the repeal of an earlier specific provision inserted in the Priests (Ordination of Women) Measure 1993.
Clause 7 of the Draft Bishops and Priests (Consecration and Ordination of Women) Measure contains an exemption from relevant clauses in the Equality Act that deal with the “terms on which an appointment is made”. The Government Equalities Office told Church House staff that “We have no doubt that Parliament will consider very carefully, and with good will, any measure that the Church of England as a whole ultimately feels is necessary to achieve this objective.”
The 1975 Act will be repealed at the same time as the new 2010 Act comes into effect, but the current exemptions in the former are carried forward in Schedule 9 of the new Act.
A Church House spokesman said on Friday, however: “In so far as anything in the 1993 Measure conflicts with Part 5 of the Equality Act it is rendered lawful by Schedule 9 paragraph 2 of the Act. But not all the arrangements contained in the 1993 Measure do conflict with Part 5 of the Act because Part 5 does not cover all the clergy.”
When asked whether it agreed that many clergy were not covered by the Equality Act, a government spokesman said on Monday: “The policy is to provide protection to those in employment and employment-related positions (meaning, roughly, where someone has sufficient direction and control over another such that discriminating against them could seriously impede their ability to obtain/engage in gainful work, thereby compromising their ability to provide for themselves), implementing our EU obligations and domestic policy. It is for the tribunals to decide whether any definition is satisfied on the facts of each case.”
The UKSC blog, which is focused on the new UK Supreme Court, has published an article by Aidan O’Neill QC titled Religion and the Judiciary.
He discusses several recent situations where the personal religious convictions or cultural background of judges have given rise to comment, and in particular the recent intervention by Lord Carey in McFarlane v Relate Avon Ltd.
He concludes:
The paradox is that the obvious tension between the views expressed by Lord Carey and their unequivocal rejection by Lord Justice Laws arises precisely because of the expansion of anti-discrimination law explicitly to outlaw discrimination on grounds of religion or belief. What the religiously motivated find difficult to understand or accept is that the freedom from discrimination on grounds of religion or belief which has been afforded them by the law does not extend to giving the religious a general right to discriminate (on otherwise unlawful grounds such as sex, age, race, disability, or sexual orientation) on the basis of religion or belief. There will undoubtedly be more litigation – if not further legislation – on this whole vexed issue. The UK tradition of being blind to our Justices’ religion will come to be further strained as a result.
Updated 3 June
See earlier reports here.
The full judgment is available in English here (PDF also available there), or as a Word file, downloadable here.
Neil Addison notes that a relevant bit of history is contained in paragraph 16, see here.
The next hearing in the case will be at the European Court of Human Rights in Strasbourg on 30 June.
The Italian Government has submitted a brief (PDF), which is so far only available in French.
Several other parties have filed Amicus Curiae briefs in this case. Here are links to some of them.
The European Centre for Law and Justice has filed a brief (PDF).
See their press release: The ECLJ Admitted as Amicus Curiae in the Italian Crucifix Case Before the European Court of Human Rights.
The American-based Alliance Defense Fund has submitted a brief (PDF) on behalf of 32 members of the European Parliament.
See their press release: Court grants ADF request to allow 32 members of European Parliament to defend Italy in cross case.
Another American-based group, the Becket Fund for Religious Liberty has also filed a brief (PDF) prepared by a team of 37 law professors.
See their press release: 37 Law Professors Urge European Court to Reject Ruling Banning Cross from Italian Classrooms.
Also, the European Humanist Federation has filed this brief (PDF). More from the EHF available here. Update This organisation has had its application to intervene rejected.
Update
There are also reports that ten European states have joined Italy in petitioning the European Court of Human Rights to overturn its decision. They are reported to be:
I have not so far linked to the detailed Church Times report on the latest judgment, written by Shiranikha Herbert and published on 7 May. Here it is: McFarlane’s appeal is refused.
In the same issue, there was a news report headlined Bishops criticise ‘secular’ judgment.
And Andrew Brown devoted most of the Press column to this: The Lord and the Law Lord.
Even earlier Carl Gardner had written on his own blog, on 30 April Short shrift for Lord Carey.
And the day before, Heresy Corner had published Laying down the Laws.
Nancy Doyle asks on the Charities_Parliament blog Was Lord Carey right to question ruling made against Christian who refused to treat gay couple?
Tom Chivers at the Telegraph argues that Religious beliefs should not trump the laws of the land.
George Pitcher does not agree.
From Eastbourne comes Christians warned of increasing marginalisation in the UK, a report on a conference where Bishop Wallace Benn, Oak Hill principal Mike Ovey, and others attacked Lord Justice Laws:
“Lord Laws also believes something, he fails to see that he has a faith too … secularism fails to understand that it is a religion.”
And there is an interview with Bishop Benn over here: Wallace Benn on the marginalisation of Christians in the UK.
But best of all, in today’s Guardian Stephen Bates tells us how Anglican the judge at the centre of this controversy really is. In the Diary column he writes:
…So just who is this wicked, secularist judge who doesn’t understand the former archbish’s concept of Christianity? Intriguingly, it turns out that Laws could scarcely be more Anglican if he tried…
Last week, before the McFarlane judgment was issued, the Church Times carried an article by Mark Hill entitled Judges should not be hand-picked.
One might be forgiven for thinking that Lord Carey of Clifton has generated more column-inches since retiring as Archbishop of Canterbury than he did when in office. His latest foray into the nation’s media is more than usually regrettable, as it strikes at the heart of the independence of the judiciary.
In a witness statement placed before the Court of Appeal on Thursday of last week, Lord Carey sought to lend his support to an application by Gary McFarlane that his case be heard by a specially constituted Court of Appeal comprising five Lords Justice who had “a proven sensitivity to religious issues”.
By what authority he sought to intervene is far from clear. He gave written evidence that, during his time as 103rd Archbishop of Canterbury, he was “responsible for the spiritual welfare of 70 million Anglicans in the worldwide communion” — a curious assertion in the light of the principle of autonomy underscored by the Lambeth Quadrilateral (See Press) His compulsion to intervene was couched as follows: “I am bound by my commitments as former Archbishop of Canterbury to defend the spiritual requirements of the Anglican Communion and of all sincere Christians. I am also bound to consider the rights of religious minorities.”
He seems to forget that, after he vacated the see of Canterbury, his successor inherited these responsibilities. As Monty Python would put it, he is an ex-Primate…
The same issue had comment on this topic by Andrew Brown in the Press column (scroll down past the pope stuff).
LORD CAREY’s impulse to self-dramatisation as a member of a persecuted Church is not as sinister as Cardinal Castrillón’s. Sorry, that was disrespectful: let me quote his proper dignities, as set out in the preamble to his witness statement: “I was the 103rd Archbishop of Canterbury and I was responsible for the spiritual welfare of 70 million Anglicans in the worldwide communion. I was created Lord Carey of Clifton upon retirement. . . Currently, I am Chancellor of the University of Gloucestershire, and I am the recipient of 12 Honorary Degrees. I am the author of 14 books.” Not even Baron Widmerpool could boast as much, and he had the advantage of an Eton education…
Updated twice
James Meikle Guardian Ex-archbishop attacks judges over gay counselling ruling
Independent
Jerome Taylor Church’s call for religious judges is rejected by Court of Appeal and
Robert Verkaik Lord Carey’s proposal is a step back to medieval days and
Steve Clifford If Christians are marginalised, it is not just the fault of secular society
Steve Doughty Daily Mail Judge rules Christians have NO special rights as he throws out case of sex therapist who refused to work with gay couples
Telegraph
John Bingham Gary McFarlane: judge’s assault on ‘irrational’ religious freedom claims in sex therapist case and
Gary McFarlane: the counsellor whose case led to warnings of ‘civil unrest’ and
Michael Nazir-Ali The legal threat to our spiritual tradition
Andrew Brown Cif belief Carey slapped down by senior judge
Neil Addison What is Religious Discrimination ?
Heresy Corner Laying down the Laws
Philip Henson Cif belief Carey’s intervention backfires
And here is an older article by him , written before the judgment, which I failed to link to previously.
The church cannot claim ‘superior right’
Christian Institute Christian counsellor appeal turned down
Letter to The Times (Saturday edition) Christian courts
In his judgment, Lord Justice Laws said this…
20. …But they do not confront deeper concerns expressed in Lord Carey’s statement and in Mr Diamond’s argument. These are to be found for example in the references to an alleged want of understanding or sensitivity on the part of the courts in relation to the beliefs espoused by Lord Carey and others: “a lack of sensitivity to religious belief” (paragraph 10 of the witness statement).
21. These concerns are formulated at such a level of generality that it is hard to know precisely what Lord Carey has in mind. Broadly, however, the argument must be that the courts ought to be more sympathetic to the substance of the Christian beliefs referred to than appears to be the case, and should be readier than they are to uphold and defend them. The beliefs in question are not specified by Lord Carey. Since his statement is given in support of the applicant’s case, it must be a fair assumption that they include what is expressly stated at paragraph 21 of Mr Diamond’s skeleton argument of 23 December 2009:
“To the religious adherent ‘Religion’ is the route to salvation:-
- The fear of hell is central to the appellant’s religious belief; and individuals ought to be informed of the consequences of hell;
…- The proposition of the appellant’s religious belief is that sin will have eternal consequences. Those who do not repent will go to hell when they die…”
22. In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.
23. The first of these conditions is largely uncontentious. I should say a little more, however, about the second. The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
24. The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
25. So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.
You can learn something more about Paul Diamond by reading this interview with him in last week’s Church Times.
Updated twice Thursday afternoon
Telegraph Judge dismisses counsellor’s bid to appeal sacking over refusal to help homosexuals
BBC Relate therapist Gary McFarlane loses appeal bid
Read the full text of the judgment here.
More press coverage:
Press Association via the Guardian Christian counsellor loses court fight over sacking
and another PA version, this time via the Independent Sacked Christian counsellor Gary McFarlane’s appeal bid dismissed
The Times Frances Gibb Special legal protection of Christianity ‘divisive, capricious and arbitrary’ headline now changed to: Judge rejects ‘irrational’ idea that Christianity deserves special protection from law
Ruth Gledhill We have never said anti-gay Christians are bigots, says Judge
Reactions from campaigning groups:
Christian Concern for our Nation
The Equality Bill received the Royal Assent on 8 April.
The full text of the Equality Act 2010 can be found here:
The Act will start to come into force from October 2010. More information on that is here.
The text of the debate in the House of Commons on Tuesday 6 April, when all the House of Lords amendments were approved without any voting taking place, can be found here:
During the debate, the Solicitor-General said:
The House might recall that it was mentioned on Report and Third Reading that the European Commission had delivered a reasoned opinion in November 2009 on two aspects of our implementation of this directive. We have now responded to that opinion, although the correspondence is kept confidential. However, as my noble Friend Baroness Royall explained on 25 January in the debate in Committee in the other place, we did not inform the European Commission that the Bill will amend regulation 7(3) of the 2003 regulations, which paragraph 2 of schedule 9 replaces, to bring the position into line with the directive. We did not say that because the existing legislation already complies with the directive. I ask the House to agree to these amendments.
Doug Chaplin has fisked the witness statement at One law for us, one for you: the Carey-a Sharia revisited.
Afua Hirsch in the Guardian has written Lawyers reject calls for Christian-sensitive judges.
Stephen Bates at Cif belief has written Lord Carey’s bloated conscience.
Earlier yesterday on the Today BBC radio programme, Barrister Dinah Rose and Andrea Williams of Christian Legal Centre discussed the implications. (hat tip SB).
Ruth Gledhill has the full text of the witness statement made today in the High Court by Lord Carey, in the case of Gary McFarlane.
Read it at Carey warns of ‘civil unrest’ over ‘dangerous’ anti-Christian rulings.
Updated twice Thursday morning and twice Thursday afternoon
According to Andrew Alderson in the Telegraph:
Lord Carey, the former Archbishop of Canterbury, and other church leaders will urge senior judges to stand down from future Court of Appeal hearings because of “disturbing” and “dangerous” rulings they issued in recent religious discrimination cases.
Senior churchmen do not think they have any chance of a “fair” ruling if the latest significant hearing – due on Thursday – is heard in front of those judges who, they argue, have already shown a lack of understanding of Christian beliefs….
Lord Carey and others will this week support a formal application by lawyers acting for Gary McFarlane, a Christian relationship counsellor, that a specialist panel of five judges with a proven understanding of religious issues and headed by Lord Judge, the Lord Chief Justice, should be established to hear his case and future cases involving religious rights.
See Church leaders head for showdown with top judges over bias against Christians.
Also, Laura Clark in the Mail reported that:
Lord Carey will back an application by Mr McFarlane’s lawyers for the case to be heard by a specialist panel of five judges with an understanding of religious issues.
It would be headed by Lord Judge, the Lord Chief Justice.
A spokesman for Lord Carey yesterday confirmed the former archbishop has already prepared a witness statement.
He will warn of ‘disturbing’ rulings and ‘dangerous’ reasoning in previous cases. Other senior church figures are also said to have prepared statements.
See ‘Anti-Christian’ judges should be banned from religious cases, says Lord Carey
Responses to this include:
Ruth Gledhill in The Times It can only harm Christians to bleat about persecution and be sure to watch the video version as well.
In Britain Christians cry: “We are being persecuted.” But the lions don’t exist beyond their imaginations or the arena beyond their story books. Lord Carey of Clifton, the former Archbishop of Canterbury, and his fellow victims are giving all Christians a bad name. It is time for liberals to stand up and say: “We will not be slain by this malevolent spirit, not even when the persecutors are our fellow Christians…”
Andrew Brown at Cif belief Carey’s court is an admission of defeat
…But as soon as the church, or Christianity, becomes just another pressure group fighting its corner, it has conceded the power to grant legitimacy to something else, whether this is public opinion or the political process. And from a position outside Christianity, it is absurd to demand that cases involving Christians and their tender consciences be tried by Christians, but corresponding cases involving Muslims should not be tried by Muslims.
And also there are statements from the British Humanist Association and the National Secular Society.
Updates
Telegraph Peter Hutchison ‘Persecuted Christians’ join forces
The letter mentioned in this report can now be read here (scroll down) or in the comments below.
Press release from CCFON, titled (the quotation marks are theirs!) ‘Christian Victims’ of English Judicial System to Challenge Master of the Rolls - today in Court
Frances Gibb The Times Lord Carey warns of ‘unrest’ if judges continue with ‘dangerous’ rulings
Lord Carey of Clifton, the former Archbishop of Canterbury, warned today of future “civil unrest” if judges continue with “disturbing” and “dangerous” rulings in religious discrimination cases.
He intervened in a case being brought by a Bristol solicitor and relationship counsellor who wants a special panel of five senior judges to hear his appeal against being sacked for refusing to counsel homosexual couples.
Lord Carey, who was Archbishop of Canterbury from 1991 to 2002, attacked the courts over a series of “disturbing” judgments and accused judges of being responsible for some “dangerous” reasoning which could, if taken to extremes, lead to Christians being banned from the workplace.
“Recent decisions of the courts have illuminated insensitivity to the interests and needs of the Christian community and represent disturbing judgments,” he said in a witness statement.
Lord Carey said it was “but a short step from the dismissal of a sincere Christian from employment to a “religious bar” to any employment by Christians.”
Lord Carey, who said he had the support of several other Anglican bishops and other leading churchmen, also attacked recent decisions by the Court of Appeal on the right of Christians to wear crosses in the workplace…
And also, Peter Hutchison Telegraph ‘Civil unrest’ warning over ‘un-Christian’ rulings
…Paul Diamond, who was applying to the Court of Appeal for permission to challenge an employment tribunal ruling which backed the sacking of Mr McFarlane, said: “There will be a collision between the established faith of this land and judicial decisions which will lead to civil unrest.”
He added that laws protecting religious freedom now “counted for nothing” in the courts.
The Equality Bill completed its passage through the UK Parliament yesterday when the House of Commons accepted all the Lords amendments. It will now go for Royal Assent.
Press Association Equality Bill sent for Royal Assent
Ekklesia Faith groups hail new law allowing civil partnerships on religious premises
The Equality Bill received its third reading in the House of Lords yesterday. Reports of the debate are online at They Work for You and Lords Hansard. The amendments to clause 202 (amendments 4 and 5 in the debate) that we detailed earlier were carried. The bill now returns to the House of Commons for consideration of these and all the other Lords amendments.
Martin Beckford writes in the Telegraph Government insists vicars will not be sued for refusing ‘gay marriages’ in churches.
Simon Caldwell and Martin Beckford also wrote in the Telegraph before the Lords third reading debate that Equality Bill could be amended by Lords to benefit Catholic adoption agencies but the amendment referred to (number 7 in the debate) was not moved.
The Cutting Edge Consortium has issued a press release:
CUTTING EDGE CONSORTIUM URGES HOUSE OF LORDS TO VETO MORE RELIGIOUS EXEMPTIONS IN EQUALITY BILL
The Cutting Edge Consortium (CEC) deplores the tabling, yet again, of an amendment to the Equality Bill, this time by Baroness Williams of Crosby, designed to provide an explicit exemption for religious fostering and adoption agencies from anti-discrimination law. The aim of Equalities legislation should be that services targeted at various population groups are provided in the overall context of achieving a more equal society, not to institutionalize discrimination.
(continued below the fold)
Equality Bill
Attempts to amend the Equality Bill to provide a new exemption specifically for religious fostering and adoption agencies have been repeatedly rebuffed in both Houses of Parliament. Recent attempts were made in the House of Lords by Lord MacKay of Clashfern and by Baroness Butler-Sloss. CEC agrees with Baroness Murphy’s comment at Committee stage:
“I would defend to the death the rights of religious groups and organisations to believe what they want to believe but, when it comes to how those religious groups behave in relation to the rest of society, they cannot exercise a right that so diminishes the rights of other groups. … these amendments are deeply, offensively, homophobic.”
CEC’s Maria Exall said:
“Everyone committed to promoting equality and non-discrimination will be alarmed that charities providing key services in the public interest will be able to act in a prejudicial way to LGBT people if these amendments are passed.”
CEC notes that claims are often made that this involves a matter of religious ‘doctrine’ but, for example, Catholic teachings on sexual orientation are not to be considered as “core doctrine”, and are officially recognised by the Vatican and Catholic theologians world-wide as Third Level teachings and subject to development. As such they require “religious respect” from Catholics but are also capable of conscientious dissent. Such dissent does not excommunicate anyone from the Catholic Church. The avoidance of conflict “with the strongly held religious convictions of a significant number of the religion’s followers” ignores the reality that many people of faith exercise their right to dissent in this area of religious teachings across a number of faiths and denominations.
CEC urges all Peers to use the final stages of the Equality Bill to close any loosely worded loopholes in existing legislation and to reject the amendment to Schedule 3 of the Equality Bill tabled in the name of Baroness Williams of Crosby for consideration at Third Reading on 23 March 2010.
Catholic Care & the Charity Commission
The CEC notes with concern this week’s High Court judgment in the case brought by the Leeds-based Catholic Care child-care agency. CEC urges the Charity Commission to take careful account of how other Catholic adoption agencies have dealt creatively with this matter, before accepting the arguments that Catholic Care will now have to make in order to pursue its case.
Catholic Care seeks to change its charitable objectives so that it will be lawful for it to discriminate against same-sex couples seeking assessment as prospective foster-carers or adoptive parents. These revised objectives would expressly state:
“The Charity would only provide adoption services to heterosexuals…”
The Charity Commission must now consider whether the benefits of the charity operating in this discriminatory manner outweigh the disbenefits of it not operating at all.
That need arises solely because Catholic Care has itself decided that if the change is not approved, it will close down rather than follow one of the alternative routes used by other Catholic adoption agencies in responding to the Equality Act (Sexual Orientation) Regulations 2007.
The majority of other Catholic adoption agencies have not closed down. A minority has chosen to discontinue adoption work while still providing other services. Over the past 30 years, many of these agencies have never discriminated against either single homosexual people or, more recently, same-sex couples since legislative changes enabled such joint adoption. They do not propose to do so now. It is also crucial to note that children placed with such agencies are in the legal care of the local authority, not the agencies themselves. No local authority would wish to place a child with a charity which it perceives as discriminatory.
Although these agencies may no longer have the local Diocesan Bishop as a Trustee, they remain Catholic charities, retaining a majority of Catholic Trustees, fundraising in the Catholic community, pastorally supported by their relevant Bishops, Dioceses, local clergy and people, and have not changed their principle charitable aims/objectives apart from, in some circumstances, a change of name, e.g Caritas Care (Lancaster), Cabrini Childrens Society (Arundel & Brighton, Portsmouth, & Southwark), Faith in Families (Nottingham). Other Catholic agencies, such as Westminster Catholic Childrens Society and Catholic Care Leeds, have never accepted lesbian or gay applicants singly or as couples.
Most of these agencies remain members of Caritas Social Action, the officially recognised social welfare agency of the Catholic Bishops Conference of England & Wales.
It remains open to the Charity Commission to find that, on the evidence presented to it in this specific case such a change would not overall result in public benefit or gain. CEC believes that evidence should include the experience of other similar agencies.
The judge also noted that his decision was not a carte blanche for other religiously-based charities which provide public services and receive public funding to simply change their charitable instruments to introduce an expressly discriminatory element. Each case has to be evaluated by the Charity Commission on its merits.
Note for Editors:
The Cutting Edge Consortium, launched in November 2009, consists of lesbian, gay, bisexual, and transgendered groups, political and social justice activists, people of all faiths and none, trades unions and professional associations. It includes: a:gender, British Humanist Association, Centre for the Study of Christianity & Sexuality, Ekklesia, Inclusive Church, Interfaith Alliance UK, Lesbian & Gay Christian Movement, LGBT Consortium of Voluntary & Community Organisations, Liberal Judaism, Muslim Education Centre Oxford, National Secular Society, Pink Triangle Trust, Progressive British Muslims, Trades Union Congress.
Further information: cuttingedgeconsortium1@googlemail.com
Martin Pendergast - 020 8986 0807
Maria Exall - 07714 206404
The Republic of Ireland is considering a Civil Partnership Bill.
See this earlier report on what the Evangelical Alliance Ireland said about it.
The Church of Ireland Gazette has a report this week on what the Church of Ireland is doing in relation to it. See C. of I. delegation on Civil Partnership Bill (scroll down for item).
…”The group expressed the view that many in the Church of Ireland would welcome the legislation and that it was important that Government legislated for all its citizens. They did, however, raise issues relating to freedom of conscience and property.”
In response to a request for further information on those issues, the Gazette was told that some members of the delegation had expressed concern over freedom of conscience issues for registrars who may have objections to participating in civil partnership ceremonies for same-sex couples.
The issues of property, we were told, related to the availability of parish halls under the Equal Status Act in respect of goods and services. We were told that clarity was also sought on the issue of Church halls that were not made commercially available, and that Department officials had said they would respond on that point…
First of all, the articles, letters previously listed from last week are now all available without subscription.
Second, this week’s news report written by me can be read now, see Alteration proposed for Bill.
…The effect of the amendment is to require that the approval of individual religious premises for the registration of civil partnerships needs consents from a “person specified, or a person of a description specified” in new regulations to be laid before Parliament after consultation with various religious bodies.
The present rule forbidding the use of any religious premises for civil-partnership registrations remains in force in the mean time. The amendment specifically allows for distinctions to be made, not only between religious premises and “other premises” but also between different kinds of religious premises. For example, the arrangements for Quakers might be different to those for Liberal Judaism. Nor would it be necessary for the regulations governing civil partnerships to be identical to those relating to civil marriages in the same venue.
A spokesman for the Archbishops’ Council confirmed on Wednesday that the amendment took account of discussions held with the Government. The Church of England’s concern, he said, was to ensure that the regulations provided for an opt-in or opt-out at denominational level. The C of E (and other denominations) wanted to be able to nominate a national body to declare a position on this issue, before individual applications could be made. This was what the Quakers themselves had done (Comment, 12 March)…
And the CT blog has noted that Equality Bill: Amendment allowing civil partnerships in church buildings could be lost, and linked to the letter already published here.
Updated
The Chancery Division of the High Court has published its decision in the case of Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales & Ano[the]r.
You can read the ruling in full here, as web pages, or here as an .rtf file.
Earlier documents in the case (mentioned in the above) can be found here.
A press release from Catholic Care can be found here, and one from Stonewall can be found here.
There are newspaper reports:
The Times High Court reverses ban on Catholic Care’s anti-gay adoption policy by Ruth Gledhill and Rosemary Bennett and see also Catholics win latest stage in gay adoption battle on Ruth’s blog.
Guardian Riazat Butt Catholic adoption agency can turn away gay couples
Telegraph Matthew Moore Catholic adoption agency wins gay rights exemption ruling
Press Association Adoption society wins gay ruling
Reuters Catholic charity wins gay adoption ruling
Independent Sarah Cassidy Catholic group granted gay adoption exemption
Updates
Some of the press reports give an erroneous impression of what has happened so far. This report by Joshua Rozenberg is more reliable: While Catholics Care, Children Suffer, and the Christian Institute is remarkably muted in tone in this report: Glimmer of hope for RC adoption agency.
Trying to celebrate civil partnerships
Sir, On February 23 you published our letter, signed also by several senior Anglicans, urging the House of Lords to support Lord Alli’s amendment to permit civil partnerships to be held on the premises of Quakers, Liberal Judaism and Unitarians. You also published a powerful leader, “Equal before God”, in support of our letter.
Lord Alli’s amendment was carried in a free vote by 95 to 21 in the face of opposition from both front benches. Several speakers quoted our letter or your leader. The Government has now accepted it, but if the Equality Bill is incomplete at the dissolution of Parliament, it goes into what politicians call “wash-up”. Only the parts acceptable to both main parties survive; the rest fall.
We hope that, as they start to campaign for the general election, they will all give an express promise to protect the amendment.
Iain McLean, FBA
Professor of Politics, University of OxfordDiarmaid Macculloch, FBA
Professor of the History of the Church, University of Oxford
Previous letter and leader article are here.
New amendments have today been filed, for consideration at Third Reading in the House of Lords on Tuesday 23 March.
First, here is the main new amendment filed:
Clause 202
LORD ALLI
BARONESS NOAKES
BARONESS NEUBERGER
Page 125, line 25, at end insert—
“(2B) Provision by virtue of subsection (2)(b) may, in particular, provide that applications for approval of premises may only be made with the consent (whether general or specific) of a person specified, or a person of a description specified, in the provision.
(2C) The power conferred by section 258(2), in its application to the power conferred by this section, includes in particular—
(a) power to make provision in relation to religious premises that differs from provision in relation to other premises;
(b) power to make different provision for different kinds of religious premises.”
Page 125, line 29, at end insert—
“(3B) “Civil marriage” means marriage solemnised otherwise than according to the rites of the Church of England or any other religious usages.
(3C) “Religious premises” means premises which—
(a) are used solely or mainly for religious purposes, or
(b) have been so used and have not subsequently been used solely or mainly for other purposes.”
Now, here is the wording of Clause 202 as already amended, and showing in bold the effect of the above new amendment on that Clause:
Civil partnerships
Civil partnerships on religious premises
The Civil Partnership Act 2004 is amended as follows. 20
Omit section 6(1)(b) and (2). In section 6A, after subsection (2), insert—“(2A) Regulations under this section may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages.” 25
(2B) Provision by virtue of subsection (2)(b) may, in particular, provide that applications for approval of premises may only be made with the consent (whether general or specific) of a person specified, or a person of a description specified, in the provision.
(2C) The power conferred by section 258(2), in its application to the power conferred by this section, includes in particular—
(a) power to make provision in relation to religious premises that differs from provision in relation to other premises;
(b) power to make different provision for different kinds of religious premises.”In section 6A, after subsection (3), insert—
“(3A) For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”(3B) “Civil marriage” means marriage solemnised otherwise than according to the rites of the Church of England or any other religious usages.
(3C) “Religious premises” means premises which—
(a) are used solely or mainly for religious purposes, or
(b) have been so used and have not subsequently been used solely or mainly for other purposes.”
And finally, below the fold is the wording of the amended clauses of the Civil Partnership Act 2004, to show where it would end up, if this new amendment is passed.
There are two other minor amendments filed:
Clause 216
LORD ALLI
BARONESS NOAKES
BARONESS NEUBERGER
Page 134, line 9, after “sections” insert
“202 (civil partnerships on religious premises),”
Schedule 27
LORD ALLI
BARONESS NOAKES
BARONESS NEUBERGER
Page 234, line 24, at end insert—
“Civil Partnership Act 2004 Section 6(1)(b) and (2)”
Civil Partnership Act 2004 as amended
Section 6 Place of registration
(1) The place at which two people may register as civil partners of each other—
(a) must be in England or Wales,
(b) must not be in religious premises, and
(c) must be specified in the notices, or notice, of proposed civil partnership required by this Chapter.
(2) “Religious premises” means premises which—
(a) are used solely or mainly for religious purposes, or
(b) have been so used and have not subsequently been used solely or mainly for other purposes.
(3) Subsections (3A) and (3B) apply in the case of registration under the standard procedure (including that procedure modified as mentioned in section 5).
(3A) The place must be—
(a) on approved premises, or
(b) in a register office.
(3B) If it is in a register office, the place must be open to any person wishing to attend the registration.
(3C) In this Chapter “register office” means a register office provided under section 10 of the Registration Service Act 1953.
Section 6A Power to approve premises
(1) The Chancellor of the Exchequer may by regulations make provision for and in connection with the approval by registration authorities of premises for the purposes of section 6(3A)(a).
(2) The matters dealt with by regulations may include—
(a) the kind of premises in respect of which approvals may be granted;
(b) the procedure to be followed in relation to applications for approval;
(c) the considerations to be taken into account by a registration authority in determining whether to approve any premises;
(d) the duration and renewal of approvals;
(e) the conditions that must or may be imposed by a registration authority on granting or renewing an approval;
(f) the determination and charging by registration authorities of fees in respect of applications for the approval of premises and in respect of the renewal of approvals;
(g) the circumstances in which a registration authority must or may revoke an approval;
(h) the review of any decision to refuse an approval or the renewal of an approval, to impose conditions on granting or renewing an approval or to revoke an approval;
(i) the notification to the Registrar General of all approvals granted, renewed or revoked;
(j) the keeping by registration authorities of registers of approved premises;
(k) the issue by the Registrar General of guidance supplementing the provision made by the regulations.
( ) Regulations under this section may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages.
(2B) Provision by virtue of subsection (2)(b) may, in particular, provide that applications for approval of premises may only be made with the consent (whether general or specific) of a person specified, or a person of a description specified, in the provision.
(2C) The power conferred by section 258(2), in its application to the power conferred by this section, includes in particular—
(a) power to make provision in relation to religious premises that differs from provision in relation to other premises;
(b) power to make different provision for different kinds of religious premises.
(3) Without prejudice to the width of subsection (2)(e), the Chancellor of the Exchequer must exercise his power to provide for the imposition of conditions as mentioned there so as to secure that members of the public are permitted to attend when two people sign the civil partnership schedule on approved premises in accordance with section 6(3A)(a)
(3A) For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”
(3B) “Civil marriage” means marriage solemnised otherwise than according to the rites of the Church of England or any other religious usages.
(3C) “Religious premises” means premises which—
(a) are used solely or mainly for religious purposes, or
(b) have been so used and have not subsequently been used solely or mainly for other purposes.
The Parliamentary Joint Committee on Human Rights (JCHR) has today published another report which considers the Equality Bill. Read the report starting here, or there is a PDF version here. For their earlier report, see over here.
Here is the summary of their latest findings on the Equality Bill:
In this Report, we return to two issues raised in our autumn 2009 report on the Equality Bill: employment by organisations based on religion or belief and school admissions.
Employment by organisations based on religion or belief
The Bill as introduced (and as passed the Commons) permitted a requirement to be of a particular sex, sexual orientation, marital or partnership status or not to be transsexual to be applied to employment for the purposes of an organised religion, but only if it could be shown to be a proportionate means of complying with the doctrines of the religion. The Bill also included a definition of what constituted employment for the purposes of an organised religion. Both of these qualifications have been removed in the House of Lords and the Government has stated that it will not try to restore them when the Bill returns to the Commons. The original wording of the Bill would have ensured that statute law accurately reflected case law, in the light of the Amicus judgment. The Lords amendments run the risk of generating uncertainty about the law and may mean that this provision does not comply with the relevant EU directive.
We also note further issues concerning the School Standards and Framework Act 1998 and the Education and Inspections Act 2006 and question why sections 58 and 60 of the former Act are exempted from the Equality Bill.
School admissions
We do not find persuasive the argument that it is necessary to allow faith schools to discriminate in their admissions on grounds of religion and belief in order to avoid a breach of the parents’ rights under Article 2 Protocol 1 of the European Convention. Another argument is that discrimination is necessary in order to maintain the distinctiveness of religious schools and so maintain the plurality of provision which, it is argued, is required by both Article 9 and Article 2 Protocol 1. This argument is weakened by evidence which suggests, in relation to Church of England schools, that plurality of provision has been preserved even where those schools do not have faith-based admissions criteria. It carries more weight in relation to other faith schools, however. In consequence, the exemption permitting faith schools to discriminate in their admissions on grounds of religion or belief may be overdrawn in this Bill.
In their subsequent detailed discussion of the first of these issues, they refer to the recent EC Reasoned Opinion and in a footnote provide a link to the complete text of it as a PDF. The concluding paragraphs of that discussion say:
1.11 In the absence of any narrowing or clarification of either Schedule 9(2) or 9(3) we share the view of the European Commission that UK law does not comply with the Framework Equality Directive
1.12 We note that further issues exist in respect of sections 58 and 60 of the School Standards and Framework Act 1998 (SSFA), which in reserving a certain proportion of posts in state-maintained or aided ‘faith schools’ for individuals who adhere to the religious beliefs and ethos of the school in question may be in breach of the Framework Equality Directive 200/78/EC, on the basis that the reservation of such posts is not restricted to circumstances where it can be shown that a genuine, legitimate and justified occupational requirement to adhere to a particular religious belief can be said to exist.
Their Conclusions and Recommendations state:
Employment by organisations based on religion or belief
1. In the absence of any narrowing or clarification of either Schedule 9(2) or 9(3) we share the view of the European Commission that UK law does not comply with the Framework Equality Directive. (Paragraph 1.11)
2. We note that further issues exist in respect of sections 58 and 60 of the School Standards and Framework Act 1998 (SSFA), which in reserving a certain proportion of posts in state-maintained or aided ‘faith schools’ for individuals who adhere to the religious beliefs and ethos of the school in question may be in breach of the Framework Equality Directive 200/78/EC, on the basis that the reservation of such posts is not restricted to circumstances where it can be shown that a genuine, legitimate and justified occupational requirement to adhere to a particular religious belief can be said to exist. (Paragraph 1.12)
3. Provisions of Section 37 of the 2006 [Education and Inspections] Act have also widened the ability to reserve certain posts filled by non-teaching staff. These provisions may constitute a breach of the principle of non-regression in EU law. (Paragraph 1.13)
4. We question why sections 58 and 60 of the School Standards and Framework Act 1998 are exempted from the Equality Bill. (Paragraph 1.14)School admissions
5. The exemption permitting faith schools to discriminate in their admissions on grounds of religion or belief may be overdrawn in this Bill. (Paragraph 1.21)
There is a leader today, Legal protection for clerical consciences.
A LITTLE historical perspective might help those who are alarmed at the consequences of the amendment to the Equality Bill passed in the House of Lords at the end of last month. The effect of it, if the Bill survives intact, would be to permit same-sex partnerships to be solemnised in Quaker meetings, Unitarian churches, and Liberal synagogues. Much attention was given last week to the fears expressed by the Bishops of Winchester and Bradford that clerics would be compelled to register civil partnerships, under threat of legal action for exercising discrimination on grounds of sexual orientation. Political parties are considering the possible consequences on votes in the forthcoming election. There is even a petition being got up to have the amendment thrown out.
Two points are perhaps worth bearing in mind…
The article mentioned in the leader Quakers seek liberty for gay couples is subscription-only until next Friday. So also are several letters, and a discussion of newspaper reports in the Press column.
The Church of England has published a note entitled Lord Alli’s amendment - civil partnerships. I am told that this was published on 5 March.
Key points regarding Lord Alli’s amendment to the Equality Bill:
- the legislation has not yet completed its passage through Parliament so may not yet be in its final form
- even once Royal Assent is achieved Ministers have to decide when each of its provisions are brought into force
- and in this case there will also have to be fresh amending regulations before there is the possibility of places of worship becoming locations for civil partnerships
- so, there is much that remains unclear for the moment and will remain so for quite some time yet.
Lord Alli’s amendment inserts a new clause into the Equality Bill that would remove provisions in the Civil Partnership Act 2004 that prevent all ‘religious premises’ being approved for the registration of civil partnerships. It does not, however, mean that anyone who wishes to do so will now be able to register a civil partnership in church - the legislation has not yet completed its passage through Parliament.
First, the Government need to consider whether the amendment, as drafted, is adequate or whether further amendments are needed to achieve what it intends; including the intention that it should not place “an obligation on religious organisation to host civil partnerships”.
Secondly, the new provision, if contained in the Bill as enacted, would not have effect until it was brought into force by order made by the Secretary of State. Given that existing Regulations make it impossible for religious premises to be approved for civil partnership registration, those Regulations would have to be amended before the new provisions could be brought into force. Amending those Regulations will, itself, require careful consideration.
As matters currently stand it remains the case that civil partnerships cannot be registered on religious premises. Precisely how that position may change remains to be seen.
In Islington registrar loses appeal we reported on the Court of Appeal decision last December.
Now, Lillian Ladele has been refused permission to appeal to the Supreme Court.
See Martin Beckford Telegraph Christian registrar denied leave to appeal gay wedding refusal.
Other reports from the Press Association, and from the BBC.
Lord Alli has written on the Telegraph website about the amendment passed in the House of Lords last week, and the ensuing discussion, see A victory for religious freedom. It reads in part as follows:
…There was nonetheless huge concern from the Church of England and the Catholic Church that they would be forced – against their will – to host Civil Partnerships.
But we had included a specific provision in the amendment to ensure religious freedom which stated quite plainly: “For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host Civil Partnerships if they do not wish to do so.”
Religious freedom means letting the Quakers, the Unitarians and the Liberal Jews host Civil Partnerships: a decision that they had considered in prayer and decided in conscience.
But religious freedom also means respecting the decision of the Church of England and the Catholic Church – decisions also made in prayer and taken in conscience – that they do not wish to do so.
That is what we agreed during the debate, and trying to pretend otherwise is to entirely misrepresent the way which this decision was taken.
I was therefore saddened by the Bishop of Winchester, who tried to characterise this debate by suggesting that Church of England vicars will be forced to host Civil Partnerships in their building.
Let’s not pretend that this amendment forces anything onto anyone. Let’s not pretend that individual clergy are going to face litigation. Let’s not pretend that churches will have to close just for obeying Church of England law.
This amendment was all about allowing religious groups to obey their own law, and the Bishop of Winchester should be above sensationalising the issue.
I was also saddened that the Bishop of Winchester was able to condemn our decision in the press, but didn’t turn up to listen to the debate, or indeed to cast a vote.
Out of the 26 bishops entitled to be there, only two made the effort to join the discussion – despite it being an otherwise well-attended debate.
You have to ask the question: if it was so important, if the consequences of this decision were to be so catastrophic, why were they absent from a debate which had been on the diary for weeks?
So let me assure the Bishop of Winchester and all those concerned: unless their religious organisation wants it, or unless Parliament changes the law, there is absolutely no risk of being forced to carry out any ceremony if they do not wish to…
The newspaper edition reports the story in a separate article, see Lord Alli attacks bishops in ‘gay marriage’ row.
Update
The Quaker position is admirably explained in a booklet, available starting here: We are but witnesses: same sex marriages (also there is a PDF version linked from there).
Ekklesia has two items:
Symon Hill writes about Scaremongering and religious liberty and he concludes:
…Michael Scott-Joynt, the Bishop of Winchester, has predicted (with no evidence whatsoever) that the Bill will lead to clergy being sued for refusing to carry out such ceremonies. It is frustrating that the media should pay so much attention to such an unfounded prediction, let alone that a national daily paper should lead with a headline wording this prediction as fact.
Since the vote in the Lords, those who are afraid of religious same-sex partnerships have latched on to Scott-Joynt’s wild warnings as an excuse for opposing the legislation. Knowing how mean it would appear to refuse religious liberty to others, they claim instead that it is their own religious liberty which is under threat.
It is sad that some seem to think that a thing must either be prohibited or compulsory, and cannot be optional. It says a great deal about their world view that they are unable to envisage a situation of real religious liberty, in which different groups can promote their views and values through dialogue and persuasion rather than coercion and the misuse of law.
Iain McLean A reply to Michael Scott-Joynt over religious civil partnerships and here is an extract:
…The issues which still divide us seem to be:
Does passing the Alli amendment send us down a slippery slope? The Times and Telegraph reports on what you say about this are, I think, rather uncritical. I am surprised that the Government Equalities Office has not commented on them, since, as you know, Lord Alli and the three denominations that sought his amendment all insist that it is designed to apply only to those denominations that request it, hence the ‘for the avoidance of doubt’ clause that he added in the version that was carried in the Lords.
Neither the Quakers nor the Church of England are congregationalist. Our Yearly Meeting decided to seek what is now the Alli amendment. It is, presumably, for your Synod to discuss the same subject and come to its own view. If it does not wish to offer civil partnerships in church, how might your (and/or Lord Tebbit’s) nightmare unfold?
Case 1: an incumbent conducts a civil partnership ceremony in defiance of his/her bishop. But the ceremony would have no legal standing unless the incumbent had applied to be a ‘religious organisation’. I am sure the regulations can be drafted so as to ensure that applications to conduct civil partnerships are only entertained from the highest judicatory of the denomination.
Case 2: a militant same-sex couple apply to a church for a partnership purely in order to sue the vicar after the application is refused. First, I deplore the efforts of Ben Summerskill, Peter Tatchell and others to use the Alli amendment as a wedge to drive civil partnership into an unwilling Church of England. Nor was the letter to The Times that some of your colleagues signed so intended. I drafted it to make clear that it was not about the Church of England.
Second, I cannot see how such an action would get anywhere in a UK court in the face of the clear wording of the Alli amendment. In recent discrimination cases, the courts have been unsympathetic towards politically motivated anti-discrimination claims.
Case 3: a loving same-sex couple do the same, in sorrow rather than anger. It would be very peculiar for them to put their litigiousness ahead of their love. If they are comfortable with the usage of Friends and willing to follow the (quite onerous) requirements laid down in Quaker Faith and Practice to test their commitment, then I hope they would choose that route. I am sure the Unitarians would also welcome them.
In none of those three cases do I see any road to Strasbourg.
Maintaining the distinction between civil partnership and marriage….
Updated
First, the Church Times has this report, written by me, on this week’s debate in the House of Lords, Religious bodies can host gay ceremonies, say peers.
Last week’s report, also by me, is now available to non-subscribers, see Civil partners: call for religious option.
This morning, Martin Beckford reports in the Telegraph that Harriet Harman could kill off ‘gay marriages in church’ plan.
In the same paper, Norman Tebbit writes about Why I tried to stop Lord Alli forcing through same-sex church ‘weddings’.
Update
Church Society has a press release, Religious Ceremonies for Civil Partnerships.
Changing Attitude has Changing Attitude’s goals and bishop’s changing attitudes.
Jonathan Bartley has Gay Church blessings and a crisis of faith: Fisking Damian Thompson.
See Swords crossed over a crucifix for what this is about.
press release from the European Court of Human Rights:
Lautsi v. Italy (application no. 30814/06)
CRUCIFIX: THE CASE OF LAUTSI v. ITALY WILL BE EXAMINED BY THE COURT’S GRAND CHAMBER
The five-judge panel of the Grand Chamber, meeting on 1 and 2 March 2010, accepted the referral request relating to the case of Lautsi v. Italy submitted by the Italian Government on 28 January 2010. The case will therefore be examined by the Grand Chamber, which will give its ruling in a final judgment…
There’s some more writing about this. Earlier items here.
Ruth Gledhill Gay marriage plan threatens churches says Bishop of Winchester
Martin Beckford and Heidi Blake Clergy could be sued if they refuse to carry out ‘gay marriages’, traditionalists fear and later version Vicars could be sued if they refuse to carry out gay marriages
Bradford Argus Kathie Griffiths Concerns are expressed over gay partnership debate in Lords
ENS House of Lords backs civil partnership ceremonies in churches
Ekklesia Campaigners and faith groups welcome same-sex partnerships vote and Simon Beard How can I keep from singing? and Jonathan Bartley “It’s all about us”: Ethnocentrism over religious civil partnerships
Christian Institute Clergy may face court over civil partnerships
Updated Sunday evening
The amendment passed by the House of Lords earlier this week affects two sections of the Civil Partnership Act 2004. One of these sections, 6A, was itself an amendment to the Act, and came in the Civil Partnership (Amendments to Registration Provisions) Order 2005. That order also amended Section 6 itself.
Below the fold is the full text of sections 6 and 6A, as previously amended, and marked up with Lord Alli’s amendments:
(1) The Civil Partnership Act 2004 is amended as follows.
(2) Omit section 6(1)(b) and section 6(2).
(3) In section 6A, after subsection (2), insert—
“( ) Regulations under this section may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages.”
(4) In section 6A, after subsection (3), insert—
“( ) For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”
The main, if not the only, other piece of legislation that would need to be revised to implement this change is The Marriages and Civil Partnerships (Approved Premises) Regulations 2005.
Clause 11 of The Marriages and Civil Partnerships (Approved Premises) Regulations 2005 which reads as follows, will not be amended, however.
(1) Any proceedings conducted on approved premises shall not be religious in nature.
(2) In particular, the proceedings shall not—
(a) include extracts from an authorised religious marriage service or from sacred religious texts;
(b) be led by a minister of religion or other religious leader;
(c) involve a religious ritual or series of rituals;
(d) include hymns or other religious chants; or,
(e) include any form of worship.
3) But the proceedings may include readings, songs, or music that contain an incidental reference to a god or deity in an essentially non-religious context.
4) For this purpose any material used by way of introduction to, in any interval between parts of, or by way of conclusion to the proceedings shall be treated as forming part of the proceedings.
Civil Partnership Act 2004 as amended
Section 6 Place of registration
(1) The place at which two people may register as civil partners of each other—
(a) must be in England or Wales,
(b) must not be in religious premises, and
(c) must be specified in the notices, or notice, of proposed civil partnership required by this Chapter.
(2) “Religious premises” means premises which—
(a) are used solely or mainly for religious purposes, or
(b) have been so used and have not subsequently been used solely or mainly for other purposes.
(3) Subsections (3A) and (3B) apply in the case of registration under the standard procedure (including that procedure modified as mentioned in section 5).
(3A) The place must be—
(a) on approved premises, or
(b) in a register office.
(3B) If it is in a register office, the place must be open to any person wishing to attend the registration.
(3C) In this Chapter “register office” means a register office provided under section 10 of the Registration Service Act 1953.
Section 6A Power to approve premises
(1) The Chancellor of the Exchequer may by regulations make provision for and in connection with the approval by registration authorities of premises for the purposes of section 6(3A)(a).
(2) The matters dealt with by regulations may include—
(a) the kind of premises in respect of which approvals may be granted;
(b) the procedure to be followed in relation to applications for approval;
(c) the considerations to be taken into account by a registration authority in determining whether to approve any premises;
(d) the duration and renewal of approvals;
(e) the conditions that must or may be imposed by a registration authority on granting or renewing an approval;
(f) the determination and charging by registration authorities of fees in respect of applications for the approval of premises and in respect of the renewal of approvals;
(g) the circumstances in which a registration authority must or may revoke an approval;
(h) the review of any decision to refuse an approval or the renewal of an approval, to impose conditions on granting or renewing an approval or to revoke an approval;
(i) the notification to the Registrar General of all approvals granted, renewed or revoked;
(j) the keeping by registration authorities of registers of approved premises;
(k) the issue by the Registrar General of guidance supplementing the provision made by the regulations.
( ) Regulations under this section may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages.
(3) Without prejudice to the width of subsection (2)(e), the Chancellor of the Exchequer must exercise his power to provide for the imposition of conditions as mentioned there so as to secure that members of the public are permitted to attend when two people sign the civil partnership schedule on approved premises in accordance with section 6(3A)(a)
( ) For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.
Dave Walker has the answer:
Cartoon: What the bishops were doing whilst civil partnerships in church were being voted on
Updated again Wednesday afternoon
The amendment proposed by Lord Alli was passed in the House of Lords by a vote of 95 to 21.
News reports:
PA Civil partnership church ban lifted
The Times Peers vote for church civil partnership ceremonies
Daily Mail Gay couples now able to marry in church after House of Lords lifts ban
Telegraph Peers vote to allow homosexuals to marry in church
Ekklesia Parliament votes to recognise religious same-sex partnerships
BBC Church gay ceremonies ban lifted
The Bishop of Bradford spoke against the amendment and voted against it.
The Bishop of Newcastle voted in favour of it.
Others voting in favour included Lord Harries of Pentregarth, who also spoke.
Others voting against included Lord Eames.
Updates
Hansard report of the debate on this amendment starts here. For the PDF version go over here.
For the official news report see this page.
And for an official analysis of the voting patterns see this.
Afternoon update
Reuters Gay activists welcome vote on religious civil partnerships
Independent Gay weddings to be allowed in church
Ruth Gledhill Bishop of Winchester slams gay marriage in church ‘fudge’ headline changed to: Bishop of Winchester warns clergy could be sued over gay marriage
Andrew Brown Civil partnerships win in the Lords
George Pitcher Lords vote for “gay weddings” – so what?
Peter Ould Lord Alli’s Amendment Passes
Evangelical Alliance Churches must be free from fear of lawsuits over civil partnerships, says Evangelical Alliance
Stonewall House of Lords votes by majority of 74 for civil partnerships in religious premises
Ekklesia Same-sex partnership change highlights need to overhaul marriage law
Quakers in Britain Quakers welcome debate on equality
Christian Institute Homosexual unions allowed in churches
CCFON House of Lords vote to allow Civil Partnerships to take place in Church
Updated twice
Several articles opposing the Equality Bill amendment proposed by Lord Alli have appeared.
Fulcrum has an article by Andrew Goddard Civil Partnerships and Religion:Some Cautions and Questions.
Andrew Carey has written in the CEN and republished by Anglican Mainstream Bishops facing real issues.
Peter Ould has written Blessing Civil Partnerships in Church.
All of these were written before the revised amendment text was published, although Andrew Goddard has made some changes to take account of it.
Peter has now also commented on the new amendment here.
On the other side of this debate, Colin Coward has written Civil Partnerships in religious buildings - at last, ‘moderate’ dissent among the bishops, and dishonesty from one who should know better.
Second Update
Gavin Drake has weighed in with Let’s all play ‘Pin the tail on the law’ with Lord Alli.
There was a letter in the Guardian this morning from the three denominations seeking this change: Church partnerships.
Richard Harries has written an article, now available at Cif belief Commitment we should encourage. Here is part of what he says:
…Some Church of England bishops, who were hardly enthusiastic about civil partnerships in the first place, fear that if this is allowed it would blur the distinction [between] them and marriage. But this is a fundamental issue of religious freedom. On what grounds can any body claim religious freedom for itself but deny it to others? The bishops may or may not approve of what Quakers, Liberal Jews and Unitarians want, but that is beside the point. What these bodies want would harm no one, and it accords with their deepest religious convictions. Religious freedom is indivisible. The only reason for denying it must be that of John Stuart Mill, namely if some public harm would result.
The harm to be taken into account need not be only physical, as race relations legislation shows. So it could be argued that allowing some faith communities to perform civil ceremonies on their premises was harmful in the sense that it undermines the institution of marriage in our society. But just the opposite is true. If we accept the argument that we need to retain both the term marriage and the term civil partnership, and that they are not identical, it seems to me clear from a Christian point of view that a ceremony in which two people commit themselves to a faithful, lifelong relationship before witnesses, partakes of the nature of a marriage. As such, from a Christian point of view, it can also express the biblical truth that such a relationship reflects the undeviating faithfulness of God towards us and which, according to St Paul, has its prototype in the relationship of christ to his church…
LORD ALLI
BARONESS BUTLER-SLOSS
BARONESS CAMPBELL OF SURBITON
53* Insert the following new Clause—Civil partnerships
Civil partnerships on religious premises
(1) The Civil Partnership Act 2004 is amended as follows.
(2) Omit section 6(1)(b) and section 6(2).
(3) In section 6A, after subsection (2), insert—
“( ) Regulations under this section may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages.”
(4) In section 6A, after subsection (3), insert—
“( ) For the avoidance of doubt, nothing in this Act places an obligation on religious organisations to host civil partnerships if they do not wish to do so.”
Analysis:
This is a substantially changed amendment. The original version read (changes marked by lining through):
(a) section 2(5) is omitted;
(b) section 6(1)(b) is omitted;
(c) section 6(2) is omitted;
(d) section 93(3) is omitted;
(e) section 137(5) is omitted.
The main effect of the changes is to retain the requirement that “No religious service is to be used while the civil partnership registrar is officiating at the signing of a civil partnership document”. Also the scope is now limited to England & Wales.
Updated further on Thursday morning
Back on 5 February, Iain McLean who is Professor of Politics at Oxford University, wrote An open letter to the Bishop of Winchester at the Open Democracy website.
Stuart White wrote a follow-up to this What about my freedom of religion? at Next Left.
This led to today’s letter which you can find via here.
Today, Ruth Gledhill reports all this, and a lot more, on her blog at Gays could soon ‘marry’ in churches, synagogues.
See also the two articles in The Times
Anglican bishops back end to ban on gay civil partnerships in church by Ruth Gledhill and Rosemary Bennett
Civil partnerships have made gay couples just like everyone else by Rosemary Bennett
Ekklesia also has a roundup of these events, which notes that:
Hardline religious activists opposed to any extension of rights for LGBT people are already lobbying vocally against the change.
Updates
Other media have repeated the story, see
BBC Clerics call for gay ceremonies at religious venues
Daily Mail Steve Doughty Liberal bishops call for gay couples to be allowed to marry in church
Telegraph Heidi Blake Senior bishops want gay weddings in churches
CIf belief has an article by Andrew Pakula Bishops shouldn’t block equality.
And Diarmaid MacCulloch has also written there, see Bishops act the bully in parliament.
Aaron Goldstein Why equality matters to us
From the other end of the spectrum, ex-CofE minister Charles Raven writes about this, When will Gay Couples be able to take vows in the Church of England?
The following letter will appear in The Times tomorrow. It is on the newspaper’s website now.
It’s discrimination to stop gay couples taking vows in church
It is inconsistent to affirm the spiritual independence of the CofE but also deny the spiritual independence of three small communitiesSir, The Civil Partnership Act 2004 prohibits civil partnerships from being registered in any religious premises in Great Britain. Three faith communities — Liberal Judaism, the Quakers, and the Unitarians — have considered this restriction prayerfully and decided in conscience that they wish to register civil partnerships on their premises. An amendment to the Equality Bill, to allow this, was debated in the House of Lords on January 25. It was opposed by the Bishops of Winchester and Chichester on the grounds that, if passed, it would put unacceptable pressure on the Church of England. The former said that “churches of all sorts really should not reduce or fudge, let alone deny, the distinction” between marriage and civil partnership.
In the same debate, the bishops were crucial in defeating government proposals to limit the space within which religious bodies are exempt from anti-discrimination law. They see that as a fundamental matter of conscience. But it is inconsistent to affirm the spiritual independence of the Church of England and simultaneously to deny the spiritual independence of the three small communities who seek this change for themselves (and not for anybody else).
The bishops’ “slippery slope” argument is invalid. Straight couples have the choice between civil marriage and religious marriage. Gay couples are denied a similar choice. To deny people of faith the opportunity of registering the most important promise of their lives in their willing church or synagogue, according to its liturgy, is plainly discriminatory. In the US it would be unconstitutional under the First Amendment: Congress shall make no law . . . prohibiting the free exercise . . . of religion.
The amendment will be re-presented by Lord Alli on March 2. We urge every peer who believes in spiritual independence, or in non-discrimination, to support it.
Iain McLean, Professor of Politics, Oxford
Diarmaid MacCulloch, Professor of the History of the Church, Oxford
The Right Rev David Stancliffe, Bishop of Salisbury
The Right Rev John Gladwin, Former Bishop of Chelmsford
Lord Harries of Pentregarth, Former Bishop of Oxford
The Right Rev Bill Ind, Former Bishop of Truro
The Right Rev Peter Selby, Former Bishop of Worcester
The Right Rev Kenneth Stevenson, Former Bishop of Portsmouth
The Very Rev Nick Bury, Dean of Gloucester
The Rev Jeremy Caddick, Dean, Emmanuel College, Cambridge
The Very Rev Jeffrey John, Dean of St Albans
The Very Rev Colin Slee, Dean of Southwark
Canon Dr Judith Maltby, Chaplain, Corpus Christi College, Oxford
Canon Brian Mountford, Vicar of the University Church, Oxford
Canon Jane Shaw, Dean of Divinity, New College, Oxford
The Rev Sarah Coakley, Norris-Hulse Professor of Divinity, Cambridge
Sarah Foot, Regius Professor of Ecclesiastical History
Alec Ryrie, Professor of the History of Christianity, Durham
Stuart White, Director of the Public Policy Unit, Oxford
Jill Green, Quakers
There is also a leading article, Equal before God.
This Government has done much to bring the law into line with modern attitudes towards homosexuality. It scrapped Section 28 , equalised the age of consent and ended the ban on gays in the Armed Forces.
Now it must resolve the legal asymmetry that prevents homosexual civil partnerships from taking place on religious premises. In a letter to The Times today, a distinguished group of mostly Anglican clergy correctly point out that “straight couples have the choice between civil marriage and religious marriage. Gay couples are denied a similar choice”. That clearly discriminates against homosexuals who are also believers, and three faith communities — Liberal Judaism, the Quakers and the Unitarians — now wish to register civil partnerships on their premises. A legal amendment permitting them to do so is expected to be debated in the House of Lords next month.
The Church of England has so far resisted change, arguing that if some religious groups are allowed to hold civil partnerships then the pressure on the C of E to follow suit will become intolerable. It is a feeble argument. No one is arguing that any church should be forced to conduct a civil partnership. But willing churches should not be precluded from doing so.
Benjamin Disraeli believed the Church of England to be “a part of our liberties, a part of our national character”. If it has any hope of continuing in that role, the Church — and the Government — must recognise that our liberties today should include the right of homosexuals to register the most important promise of their lives in a church.
This happened last Tuesday, 9 February.
The Hansard record starts here, or the PDF is over here.
The Archbishop of York took part in the debate. On this occasion, and in a different context to the previous one, he was in favour of the concept of proportionality.
His contributions are here, here, and here.
The Bill now moves to the Report stage, which will occur on Tuesday 2 March.
Last week’s issue of The Tablet had several articles on this subject, including:
Elena Curti Parliament in his sights - The Pope and the Equality Bill
An editorial: Deepest Human desire
and an article by Clifford Longley reproduced here below the fold, with the express permission of the editor.
Clifford Longley’s column from The Tablet dated 6 February 2010.
‘If something said by the Pope can be fitted by the media into one of its templates, it will be’
The Catholic Church, with Pope Benedict at the centre, was engulfed in a firestorm of mostly hostile media attention starting on Monday night. And the embers will not die quickly. There is every prospect that the papal visit in September will turn into one long shouting match of the same kind, with truth the first casualty.
I became aware of the spin that was developing when a correspondent rang me for my reaction to the Pope’s address to the bishops of England and Wales during their ad limina visit to the Holy See. Was it, the correspondent asked, an attack on the Equality Bill now going before Parliament, as people were saying? I said it was almost certainly about the gay adoption issue, because it criticised legislation already in effect, not legislation still under debate.
But this news desk wanted it to be about the Equality Bill whether it was or not. By evening, most of the rest of the media had joined in, with the BBC excitedly calling it an “unprecedented intervention” in British politics by the Pope. (Never mind that the Vatican called the invasion of Iraq a “crime against peace”.) Given the way the media herd-instinct operates and newspapers and the broadcasters follow each other’s lead, this quickly became the received view.
By the time the Archbishop of Westminster, Vincent Nichols, was being interviewed from Rome by John Humphrys of the BBC’s Today programme next morning, the trap was set. “This is the Pope getting involved in our politics, isn’t it?” he asked Archbishop Nichols. The “this” of the question obviously referred to the current Equality Bill furore in the morning’s papers; the “this” of the archbishop’s answer, however, was the well-known Catholic complaint about Catholic adoption agencies being squeezed out of business by the Sexual Orientation Equality Regulations, three years ago. As the archbishop knew, the Pope’s words were clearly about past legislation, not future. After praising British commitment to equality in general, the Pope had added: “The effect of some of the legislation designed to achieve this
goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs.” Which the bishops have said many times, and apart from the word “unjust”, was a purely factual statement.
I later asked the correspondent who had rung me why the false interpretation had persisted beyond the point at which it had been realised, and the reply was: “As you know, sometimes newspapers are afraid to be a lone voice.” I have to say that by next day, leaving aside the obsession with the Equality Bill, that paper had got it more or less right – although one has to ask, without the Equality Bill angle, whether there was much of a story there anyway. “Pope endorses bishops’ stand over gay adoption” wasn’t going to set the world alight. But for ever and a day, people will believe that the Pope had joined the debate over legislation before Parliament, and they also believe this was in some way unprecedented and, with reference to John Humphrys, utterly improper.
“Houston, we have a problem.” The wheels haven’t yet fallen off the papal visit, but there is a warning here. This incident tells us quite a lot about the secular media’s willingness to twist the facts to create a story. It also tells us about the sensitivity of public opinion, or a certain section of it. On the right, of course, this papal “intervention in British politics” was wholly welcome.
But we should probe more deeply. News reporting works by templates. If something said by the Pope can be fitted into one of the media’s favourite current templates, it will be shaped for that purpose. The template here is about religion, and Catholicism in particular, as an anti-progressive force in society. So even if the Pope didn’t mean to attack the Equality Bill, the “greater truth” served by this type of news reporting was that he would have done if he’d thought of it. And never mind that he was speaking carefully, defending the Church’s religious freedom while praising the British tradition of freedom of speech, and indeed, of promoting equality. He was deemed to be trampling all over gay rights in general, not to mention parliamentary sovereignty.
It would be dangerous to assume that the papal visit will be conducted against a media background that is benign. What the Catholic Church needs is a sophisticated rapid-rebuttal unit that knows the way the media thinks, and that can intervene to put out media fires before they take hold. Sometimes spin-doctoring is a necessary evil.
At Ekklesia there is some analysis of what Rowan Williams said on Tuesday, in Archbishop says sorry to gays but defends Church’s discrimination.
In Cif: belief Savi Hensman gets more explicit: Rowan’s apology falls short.
And, I wrote a piece for Cif:belief which is headlined Rowan’s speech and the equality bill.
Also, Kelvin Holdsworth has written Still Shocking.
Some exchanges from the House of Commons last Thursday:
Kitty Ussher (Burnley) (Lab): … I know that my right hon. and learned Friend shares my view that it is wrong that religious organisations should be able to discriminate against, for example, gay people or women who apply for non-religious posts in those organisations. She will also know that a Government amendment on that subject was defeated recently in the other place. Will she therefore take this opportunity to clarify for hon. Members whether she will reintroduce such an amendment when the Equality Bill returns to the Commons?
Ms Harman: I thank my hon. Friend for raising this matter. The Government’s policy is clear and has not changed. Our view remains that religious organisations employing people should comply with the law that applies to all other employers, whether that is the requirement to have written contracts, pay sick pay or the minimum wage, or the requirement not to sack people unfairly or discriminate against them. However, our position has always been that for specifically religious work—as a vicar, priest, rabbi or imam—religious organisations would be exempt from non-discrimination law. A religious organisation cannot discriminate against gay people or women when it hires a bookkeeper, but it can when choosing a minister of religion.
The amendment that we proposed in the House of Lords did not intend to change that policy position. What it sought to do was make the distinction between religious and non-religious jobs clearer. The Lords did not regard our amendment as helpful. We will therefore leave the law as it is, and not bring the amendment back to this House. The law will remain as it was: in anti-discrimination law there is an exemption for religious jobs but not for non-religious jobs.
Mr. Edward Leigh (Gainsborough) (Con): With regard to what the Leader of the House said earlier about the Equality Bill, she will know that concern was expressed in the other place that her amendments were so tightly drawn that they could have encompassed even the Archbishop of York, because he spends a lot of his time working in the community, not just proclaiming the liturgy. Being positive, and now that the Government are not overturning their defeats, can we take it that the Government now accept the principle that the Churches must be allowed to regulate their own clergy according to their own conscience?
Ms Harman: The hon. Gentleman is quite wrong. We never sought to, or indeed even unintentionally, propose non-discrimination laws covering bishops, rabbis, archbishops or priests. In the 2003 non-discrimination employment regulations, we explicitly allowed for an exemption for those involved in religious ministry, so I am sorry that he has taken the opportunity to spread a misapprehension. There was never an intention—and nor is there an intention—to apply the provisions to those involved in religious ministry. However, if a church, synagogue or mosque is hiring a cleaner, bookkeeper or finance officer, it will have to comply with the normal, non-discrimination provisions of employment, like all others. I hope that, instead of spreading misapprehension, he will reassure those who raised that concern with him that it never was the Government’s intention to make that change. The amendment simply clarified the difference between a religious and non-religious job, and whatever the criticisms of the drafting, which I do not accept, nobody could think that it would say that being Archbishop of Canterbury was not a religious job.
Mr. Rob Wilson (Reading, East) (Con): Given that the right hon. and learned Lady clearly believes in its continued importance and relevance in today’s world, may we have a debate in Government time on papal infallibility?
Ms Harman: That is not a matter for the House. What are matters for the House are public policy and legislative scrutiny, and what is a matter for the Government is to ensure that, although we respect the fact that some areas of religion must be subject to the control and decisions of those religions, for the rest, religious organisations, like everyone else, obey the law.
The Church Times today carries my report of recent events under the headline: Churches to keep their exemption from equality law, Harman confirms.
THE LAW covering church employment will stay as it is, the Minister for Women and Equality, Harriet Harman, said on Tuesday. She was speaking after the defeat in the Lords of an amendment to the Equality Bill (News, 29 January), which sought to clarify the exemption for religious bodies from the existing legislation, to ensure that it applied only to church ministers…
This report also includes two sections on more of the House of Lords debates from Monday and Wednesday of last week, including the one on Civil Partnerships venues.
Earlier on Monday of last week, the House considered a proposal from Lord Alli to to amend the Civil Partnerships Act to allow religious venues to be used.
Lord Harries, the former Bishop of Oxford, spoke in support. He said: “The Government were absolutely right to respect the religious sensitivities of the Church of England when the Civil Partnership Bill went through Parliament, but since that time a new situation has emerged. The Quakers, liberal Jews, and other religious bodies have made it quite clear that they want permission to conduct these ceremonies in a religious context with religious language. This is a fundamental issue of religious freedom…”
Cif: belief yesterday carried a comment article by Riazat Butt headlined More Catholic than the pope.
There is still much anger over the pope’s comments about UK equality laws. Part of me wonders why people are surprised by the nature of his observations – they are exactly what one would expect – and part of me also wonders why people are focusing on the equality bill, which was more about Anglicans than Catholics. The Catholic bishops did not turn a blind eye to the proposed legislation, but it was the Lords Spiritual who went to war over it. They won. Well done them. That the established church is trying to shut out people whose lifestyle is at odds with Christian ethos brings the words “stable”, “door” and “bolted” to mind. Their attempts to legitimise “sexual cleansing” also reminds me of the time that Katharine Jefferts Schori accused the C of E of double standards…
and she concludes:
While I accept the pope was out of order for passing judgment on equality legislation and UK attitudes towards homosexuality, the same level of anger and outrage must be directed at those Church of England bishops who fought tooth and nail to keep the status quo, to preserve their right to discriminate against gays and lesbians and to institutionalise and legitimise prejudice against anyone they deemed to be unfit for purpose because of their lifestyle.
Newspaper headlines on Wednesday were confusing:
Independent Jerome Taylor Harriet Harman defends equality legislation following Pope’s criticism
Telegraph Andrew Porter and Martin Beckford Victory for religious groups as Labour gives up on Equality Bill clause condemned by Pope
The Times Rosemary Bennett and Ruth Gledhill Harriet Harman backs down over employment equality for churches
The Independent also had The Big Question: What is equality legislation, and why is the Pope so concerned about it? by Andy McSmith
Andrew Brown interpreted all this as Harman retreats.
So what actually happened?
First, on Thursday last week, long before the Pope spoke, Harriet Harman answered a question in the House of Commons. You can read the Hansard record of it here. The relevant bit is also copied below the fold.
Second, this week the following statement was issued by the GEO on Tuesday:
Harriet Harman, Minister for Women and Equality, said:
“There are religious jobs and non-religious jobs within organised religion. For example, a pensions assistant ensuring that the records database is kept up to date is not doing a religious job. Issuing and processing invoices, even if it is done in the employment of a church or other religious organisation is not a religious job.
“Employment and non-discrimination law applies to religious organisations when they employ people in non-religious jobs in the same way that it does to all other employers. We have never insisted on non-discrimination legislation applying to religious jobs such as being a vicar, a bishop, an imam or a rabbi.
“Religious organisations can decide themselves how to do that. However, when it comes to non-religious jobs, those organisations must comply with the law. We thought that it would be helpful for everyone involved to clarify the law, and that is what the amendment that we brought forward aimed to do. That amendment was rejected. So the law remains as it was.”
Andrew Rosindell: Will the Minister finally admit that were it not for the successful amendment from Baroness O’Cathain in the House of Lords earlier this week, the Equality Bill as unamended would have further restricted employment for people working in religious organisations?
Ms Harman: No, it would not. We thought that it would be helpful for everyone involved to clarify the law, and that is what the amendment that we brought forward aimed to do. That amendment was rejected. However, it would be helpful for the House to understand that there are religious jobs and non-religious jobs within organisations. For example, I would say that a pensions assistant ensuring that the records database is kept up to date was not doing a religious job. I would also say that issuing and processing invoices, even if it is done in the employment of the Church of England, is not a religious job.
To make it clear, the law applies to religious organisations when they employ people in non-religious jobs in the same way that it does to everyone else. We have always been clear that we are not going to insist on non-discrimination in relation to religious jobs such as being a vicar, a bishop, an imam or a rabbi. The law has stepped back from that and said that religious organisations can decide themselves how to do that. However, when it comes to non-religious jobs, those organisations must comply with the law, and that is how the law remains.
Mr. Mark Harper (Forest of Dean) (Con): The Minister will know that before the Government’s defeat, her Bill as unamended did not even make it clear that ministers of religion would have to live in accordance with the faith of their religion. Following the Government’s defeat in the other place not once but three times, by a coalition led by Conservative peers, bishops and Cross Benchers, the Bill has been improved. Can the Minister confirm that the Government will accept the decision in the other place to enable Churches to insist that key posts be held by those who live in accordance with the tenets of their faith, or will she seek to reverse that defeat in this House?
Ms Harman: I think that the hon. Gentleman is trying to perpetrate a further misunderstanding. We are absolutely clear that we have never intended to extend the non-discrimination provisions to ministers of religion, nor have we ever tried to do so. Therefore they are exempted. We have always made it absolutely clear that they are and will continue to be exempted from the non-discrimination laws, and we have not sought to change that. There has been an issue about what is or is not a religious job, and we sought to clarify that. Our helpful clarification was not regarded as helpful in the House of Lords, and therefore the amendment was defeated. We will consider how to respond to that, but an official announcement will be made in due course, once these things have gone through the machinery, as it were. However, I would reassure hon. Members that the policy will remain as it is, and I would not want to lead them to anticipate that it will be brought forward again in this House.
Steve Bell in the Guardian had a cartoon, see Your equality laws are unjust, pope tells UK before visit.
Listen to Archbishop Peter Smith of Cardiff, speaking on Vatican Radio in Rome on Tuesday.
The Guardian published this editorial comment on Wednesday: Equalities legislation: The pope protests.
The Question of the Week at Cif:belief has been Does faith trump equality? (This was started on Monday, before the Pope spoke.)
In response to the Pope incident, Martin Pendergast wrote at Cif: belief All of us deserve equality.
And Simon Jenkins wrote An odious view, indeed. But I’m with Pope Benedict on this one.
The Chief Rabbi, Jonathan Sacks wrote in The Times The Pope is right about the threat to freedom.
The Archbishop of York gave a lecture, in Newcastle, titled Gracious Magnanimity vs. Tolerance. You can read the full text of that here.
Updated again Tuesday morning
The Pope has commented on British equality legislation.
Cif belief has republished an address delivered to the Catholic bishops of England and Wales by Pope Benedict on 1 February 2010.
The key paragraph is this:
Your country is well known for its firm commitment to equality of opportunity for all members of society. Yet as you have rightly pointed out, the effect of some of the legislation designed to achieve this goal has been to impose unjust limitations on the freedom of religious communities to act in accordance with their beliefs. In some respects it actually violates the natural law upon which the equality of all human beings is grounded and by which it is guaranteed. I urge you as Pastors to ensure that the Church’s moral teaching be always presented in its entirety and convincingly defended. Fidelity to the Gospel in no way restricts the freedom of others – on the contrary, it serves their freedom by offering them the truth. Continue to insist upon your right to participate in national debate through respectful dialogue with other elements in society. In doing so, you are not only maintaining long-standing British traditions of freedom of expression and honest exchange of opinion, but you are actually giving voice to the convictions of many people who lack the means to express them: when so many of the population claim to be Christian, how could anyone dispute the Gospel’s right to be heard?
There has been a speedy British media reaction to this:
Telegraph Damian Thompson Pope tells English and Welsh bishops to get their act together and Has the Pope declared war on Labour?
Martin Beckford Pope Benedict XVI criticises ‘unjust’ effects of Harriet Harman’s Equality Bill
Press Association Pope confirms he will visit Britain Headline changed to Pope attacks equality laws in UK
The Times Ruth Gledhill Pope Benedict XVI confirms first state visit to UK and Pope: Britain’s equal rights legislation ‘violates’ natural law and Pope Benedict XVI attacks Labour’s equality push
BBC Pope Benedict confirms first papal UK visit since 1982
Guardian Riazat Butt Pope condemns gay equality laws ahead of first UK visit
Independent Jerome Taylor Pope: I’ll visit but I don’t like your equality laws
Monday evening additions
Government Equalities Office press statement:
“The Pope acknowledges our country’s firm commitment to equality for all members of society. We believe everyone should have a fair chance in life and not be discriminated against. The Equality Bill will make Britain a fairer and more equal place.”
Telegraph Editorial Opinion Harriet Harman’s Equality Bill should be laid to rest headline changed to The Pope, Labour and religious freedom.
The Times Ruth Gledhill Pope Benedict XVI misses the point in his attack on UK equality law
Guardian Andrew Brown Papal aggression
Catholic Herald Mark Greaves Pope Benedict condemns Equality Bill
Reuters Philip Pullella Pope confirms Britain visit, attacks equality bill and second version of this story
Telegraph Martin Beckford Pope Benedict XVI attacks Labour’s ‘unjust’ equality laws ahead of UK visit and later version Pope attacks Labour laws on equality
Tuesday morning updates
Daily Mail Simon Caldwell Pope condemns Harman equality drive as ‘violation of natural law’
Mirror POPE SLAMS RIGHTS BILL
BBC Pope Benedict attacks government over Equality Bill
Herald (Scotland) Outrage as Pope attacks UK equality laws ahead of state visit
Press Association Anger as Pope slams UK equality law
Also Martha Linden of PA, via Independent Anger after Pope slams ‘unjust’ UK equality laws
Guardian Riazat Butt Your equality laws are unjust, pope tells UK before visit
Monday was revision day 4. Wednesday was day 5 and this was originally supposed to be the final day, but now an additional day has been scheduled for Tuesday 9 February (during General Synod, so not so convenient for bishops, perhaps.)
On Monday, following the previously reported debates on Clause 2, amendments to Clause 3 were also considered. Both the Archbishop of York and the Bishop of Winchester took part in this debate.
The Hansard report of that starts here. Monday’s PDF is here.
Then, on day 5, the Hansard report of the debate starts here. The PDF file for the day is over here.
Official news report of Day 5.
The day began by consideration of the mandatory retirement age. The Bishop of Chester spoke on that.
Then, amendments relating to faith schools were considered. That part of the debate starts here.
And there was a debate on amendments relating to whether or not the public equality duty should be extended to cover Religion or Belief. That debates starts here.
The Archbishop of York and the Bishop of Liverpool both spoke in these debates. No votes were taken on anything.
Today’s Church Times has three mentions of the bill.
There is a full news report of Monday’s debate, written by me, Bishops win in Equality Bill fight.
There is a leader, titled Opportunities not yet equal.
And there is comment on the secular press coverage of it in the Press Column (subscriber only until next week) by Andrew Brown.
THE Government’s defeat in the Lords over the Equality Bill was covered on remarkably simple left/right lines: for the right-wing papers, the issue was simply one of the freedom of the Churches from the oppressions of Harriet Harman and the European Union; for the Left, it was just as simply the freedom of gays to be employed…
The Church of England Newspaper devoted its entire front page to the bill. The main news story is reproduced over here.
Catholic Herald Anna Arco Government suffers Equality Bill defeat
More to follow.
Updated Wednesday evening
Telegraph Martin Beckford Gay couples should be allowed to ‘marry’ in church, Government minister says
George Pitcher The Church should bless civil partnerships – but they’re not weddings
At Cif:belief
Andrew Brown Secularism and bigotry and May church press officers be gay?
Savi Hensman Church leaders are wrong on equality
Terry Sanderson Let’s fight the church on equality
At Ekklesia
Lords vote to reduce protection for religious groups’ staff and Government to consider legal status for religious same-sex partnerships
Equality Bill and religious discrimination and Misrepresenting equality… and Christianity
What’s so civil about a civil partnership?
Also (this topic should be reached this afternoon):
Equality and employment in faith schools and Public bodies seek an end to religious discrimination against teachers
CARE Religious Liberty upheld in Lords vote on Equality
CCFON Praise God for the victory in the House of Lords!
Christian Institute Lords defeat Govt over church staff
Catholic News Service Britain’s House of Lords backs church arguments on Equality Bill
Catholic News Agency Religious freedom safeguards preserved by defeat of UK Equality Bill
Updated twice Tuesday morning
All of the amendments proposed by Baroness O’Cathain and others were agreed today.
See here for what each amendment says.
Amendment 98 216-178 agreed by 38 votes
Amendment 99 agreed
Amendment 99A 174-195 disagreed by 21 votes (government amendment)
Amendment 100 177- 172 agreed by 5 votes
More details tomorrow. Eight bishops participated in these votes.
Updates
The Hansard record of the debate on the amendments of Baroness O’Cathain listed above starts here. The PDF version is over here.
Slightly earlier, the amendments of Lord Alli had been debated. That record begins here.
Voting details:
Amendment 98
Amendment 99 - no division
Amendment 99A
Amendment 100
Press reports on all this are sometimes inaccurate on the voting figures. But here they are:
Telegraph Equalities Bill: Church leaders defeat Government over gay staff
BBC Government defeated three times over church gay plan
Reuters Government loses its Equality Bill faith proposals
Daily Mail Lords defeat for Harman over forcing churches to hire gays
Independent Peers defeat Government on church gay ban
BBC Churches fear Equality Bill will conflict with faith
Guardian Afua Hirsch Equality bill: churches and campaigners demand clarity on religion’s exemption
Ekklesia Religion on the agenda as Parliament debates Equality Bill and Equality Bill addresses discrimination against Christians
Daily Mail Harriet Harman’s law ‘will force churches to hire gays’
Telegraph Half of older workers want to keep jobs past retirement age (this is not a story about bishops)
From the blogs:
Cranmer supports the amendments about Civil Partnerships, see Equality Bill: European Commission v the Church of Jesus Christ
The bishops have not expressed any interest in Clause 3, the one which deals with discrimination on the ground of Religion or Belief. Here’s how it reads at present:
Other requirements relating to religion or belief
3. A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—
(a) it is an occupational requirement,
(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
There are five amendments listed.
Amendment 101ZA Baroness Turner of Camden
in para (a) leave out “an” and insert “a genuine”
Amendment 101A Baroness Turner of Camden
at end insert—
“(d) A is not operating as a public authority, on behalf of a public authority or operating in relation to a contract with public authorities.”
Amendment 101B Lord Lester of Herne Hill
at end insert—
“Paragraph 3 does not apply when A is operating—
(a) on behalf of a public authority, and
(b) under the terms of contract between the organisation and the public authority.”
Amendment 101C Baroness Turner of Camden
at end insert—
“The exception under paragraph 3 shall not be used to justify discrimination on any other protected ground.”
Comment is free: belief has today published an article written by me, see
Churches panic over equality bill.
The bishops say in their press release that they are supporting three specific amendments to Schedule 9 Clause 2 of the Equality Bill. Here is the detail of the third one. As before, please remember two things:
- this clause does not deal with discrimination on the grounds of Religion or Belief, that is covered in Clause 3.
- this clause deals with a variety of other requirements as listed in paragraph 4.
Amendment 100 is sponsored by Baroness O’Cathain, Lord Anderson of Swansea, the Lord Bishop of Winchester, and Baroness Butler-Sloss.
This removes paragraph 8 entirely, thus:
(8) Employment is for the purposes of an organised religion only if the employment wholly or mainly involves— (a) leading or assisting in the observance 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).
There is no such wording in existing legislation.
Before that amendment is considered, Amendment 99A will be moved by Baroness Royall of Blaisdon, on behalf of the government. This amendment inserts the following wording at the end of paragraph 6, leaving paragraph 8 unchanged. However, Baroness Royall has stated that if Amendment 99A is passed, the government will accept Amendment 100.
”( ) Employment is for the purposes of an organised religion only if—
(a) the employment is as a minister of religion, or
(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others).”
The government says that this is only a clarification of the existing law, and does not constitute any change. It refers to the statement made by Lord Sainsbury of Turville in the House of Lords in 2003:
“When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion.” [Official Report, House of Lords, 17 June 2003; Vol. 649, c. 779.]
The bishops say “the current limited exemptions for organised religions are balanced and should not be further restricted.”
What they ask is for candidates for “a small number of lay posts”, or more exactly “certain senior lay posts that involve promoting and representing the religion” to be required “to demonstrate an ability to live a life consistent with the ethos of the religion”.
There are two other amendments being proposed to Clause 2.
In Amendment 97E Lord Alli proposes to delete paragraph (4f) thus
(f) a requirement related to sexual orientation.
In Amendment 100A Baroness Turner of Camden proposes to insert three words in paragraph 8, thus:
-(8) Employment is for the purposes of an organised religion only if the purpose of the employment wholly or mainly involves etc.
The bishops say in their press release that they are supporting three specific amendments to Schedule 9 Clause 2 of the Equality Bill. Here is the detail of the first two. Please remember two things:
- this clause does not deal with discrimination on the grounds of Religion or Belief, that is covered in Clause 3.
- this clause deals with a variety of other requirements as listed in paragraph 4.
Amendments 98 and 99 are sponsored by Baroness O’Cathain, Lord Anderson of Swansea, the Lord Bishop of Winchester, and Baroness Butler-Sloss.
These amendments have the following effect:
(5) The application of a requirement engages the compliance principle if the
application is a proportionate means of complyingrequirement is applied so as to comply with the doctrines of the religion.(6) The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the
application is a proportionate means of avoiding conflictrequirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.
The wording that they seek to delete was not in Clause 7 of the 2003 Employment Equality (Sexual Orientation) Regulations, nor was it in the The Employment Equality (Sex Discrimination) Regulations 2005 amending Clause 19 of the Sex Discrimination Act 1975, both of which are to be replaced by this Schedule.
The proportionality principle is however a requirement of the European Employment Directive 2000/78/EC of 27 November 2000.
Article 4
Occupational requirements
1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.
2. Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground.
Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.
Or in other words, the Directive contains a strict test which must be satisfied if a difference of treatment is to be considered non-discriminatory: there must be a genuine and determining occupational requirement, the objective must be legitimate and the requirement proportionate. No elements of this test appear in Regulation 7(3).
Church of England press release received at 11 am Saturday
Equality Bill: ‘Churches must not face further restrictions’
23 January 2010
A statement issued on behalf of the Rt Revd Michael Scott-Joynt, Bishop of Winchester, the Rt Revd Michael Langrish, Bishop of Exeter and Chair of the Churches Legislation Advisory Service and the Rt Revd Peter Forster, Bishop of Chester, as bishops who have taken a keen interest in the progression of the Bill:
“This Monday, as Peers meet to consider the Government’s Equality Bill, they will be asked to vote on an issue of great importance to Christians and all people of faith. At stake is how we, as a liberal democracy based on Christian values, strike the right balance between the rights and responsibilities of different groups to be protected from harassment and unfair discrimination and the rights of churches and religious organisations to appoint and employ people consistently with their guiding doctrine and ethos.
“The Christian Churches, alongside many other faiths, support the Equality Bill’s wider aims in promoting fairness in society and improving redress for those who have suffered unjust treatment.
“However, unless the present drafting of the Bill is changed, churches and other faiths will find themselves more vulnerable to legal challenge than under the current law. When regulations on employment discrimination were passed as recently as 2003, churches and other faiths were granted certain limited exemptions by parliament to be used when recruiting ministers of religion or others to a small number of lay posts. These enabled religious organisations to apply requirements that candidates for certain senior lay posts that involve promoting and representing the religion are able to demonstrate an ability to live a life consistent with the ethos of the religion, as well as sharing the faith.
“The government have said that they share our view - that the current limited exemptions for organised religions are balanced and should not be further restricted. Yet they are proposing to modify them. They have produced no convincing case for change. They have now offered to amend their original proposals in the Bill but instead of reverting to the status quo have produced words which will still create difficulties for churches and religious groups. This despite our raising the problem many months ago and offering various ways of resolving the issue.
“We must conclude therefore that the only way to maintain the status quo in exemptions for religious organisations is for Peers to support amendments 98, 99 and 100 on Monday, tabled by Baroness O’Cathain and the Bishop of Winchester, over and above the Governnment’s compromise amendment 99A.”
There are further reports about this today:
In the Church Times there is a report by me, subscriber-only until next Friday, headlined Change fails to silence critics. A longer account by me is below.
In the Catholic Herald Simon Caldwell has a report headlined Equality Bill still a threat, say bishops.
On the other hand, the National Secular Society has a press release, NSS battles to minimise religious opt outs in Equality Bill.
A new Marshalled List of Amendments has been published. I will review the changes in a later post.
What follows is my full account of events of the past week.
The Government’s efforts to clarify the exemption for churches in the Equality Bill have not been welcomed by either the Archbishops’ Council or the Roman Catholic bishops conference. The Bill is due to complete its Committee stage in the House of Lords next week.
The new amendment wording is:
—————————————————————-
Employment is for the purposes of an organised religion only if—
(a) the employment is as a minister of religion, or
(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others).
——————————————————————-
When the amendment text was published last Thursday, a spokesman for the Archbishops’ Council said “The Government amendment reflects a recognition that the concerns expressed all along by the churches have been well founded. But it still falls short of what we have been arguing for and leaves too much for the courts and tribunals to interpret. That is why we shall continue to support the deletion of clause 2 (8) as the surest way of preserving the status quo for churches and other faiths.”
Asked to clarify this on Monday, Mr William Fittall, Secretary-General of the Archbishops’ Council, confirmed that the church would prefer that the existing wording should simply be deleted. Consultations had been held with Government since last June, but the new amendment was not satisfactory.
On Friday, Mr Richard Kornicki of the Catholic Bishops Conference of England and Wales had said “The Government amendment goes some way to meeting our needs - particularly in putting the position of Ministers of religion beyond doubt, and identifying ‘promote’, ‘represent’ or ‘explain the doctrine’ as functions to be covered. However, the phrase ‘exists to’ might, according to legal advice, be interpreted narrowly by courts as meaning the whole purpose, which would get us straight back into the problems caused by the ‘wholly or mainly’ formulation”. He believed that deletion was “the only sure way of guaranteeing that the Bill neither extends nor narrows the scope of the current legal provision.”
A spokesman for the Government Equalities Office insisted on Tuesday that the new definition made no change at all in the current law. He pointed out that the wording reflected very closely what Lord Sainsbury had said in the House of Lords in June 2003 and putting this wording on the face of the bill would give greater clarity. Speaking for the Government at that time, Lord Sainsbury had said: “When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion.”
These amendments to Schedule 9 Clause 2 of the Bill will be debated in the House of Lords next Monday.
Another amendment proposed by the Bishop of Winchester, the Rt Revd Michael Scott-Joynt, Baroness Butler-Sloss, and others, would remove the word “proportionate” from the clause. This word, which did not appear in the corresponding 2003 regulations, was included by the Government to clarify the requirement of the European Equal Treatment Directive 2000 for a proportionality test to apply. The recent “reasoned opinion” sent to the UK government by the European Commission argues that “exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive”.
An attempt will also be made to amend Clause 3 of Schedule 9, which deals with employment discrimination on grounds of Religion or Belief. This exemption applies to any employer “with an ethos based on religion or belief”. The amendments, proposed by Lord Lester and by Baroness Turner of Camden, seek to remove this freedom when an employer is “operating on behalf of a public authority”.
The Government has accepted the need for two amendments, proposed by the Bishop of Winchester and by Baroness Gould of Potter Newton, concerning the religious marriage of somebody who has undergone gender reassignment. These ensure that clergy of any denomination with conscientious objections will, as now, not be obliged to perform such marriages. The House of Lords approved them on Tuesday.
Back on the 13 January, the Bishop of Winchester also spoke in the debate last Tuesday about the issue of harassment. This was in the context of an amendment dealing with Clause 14: Combined discrimination: dual characteristics. The Bishop’s remarks can be found here.
Ruth Gledhill blogged about this yesterday, in Bishop of Winchester: Equality Bill ‘irrational and ignorant’. I added a comment there as follows:
The Bishop of Winchester’s remarks about harassment are interesting, and - as Lord Lester said - this topic will come up in its own right later, but the issue is entirely separate from the Schedule 9 clauses that are upsetting CARE, Christian Institute, and CCFON so mightily, and in my opinion unjustifiably.
It is incorrect to suggest that the bishop described the Equality Bill per se as “irrational and ignorant”.
When he said “It is an irrational and ignorant way of behaving by authorities and others” he was not referring to the wording of the bill, but to the behaviours by local authorities that he had enumerated in the previous paragraph. He said that he thought the proposed wording of the bill “may exacerbate that set of problems”.
It is a rare occasion indeed when I defend the Bishop of Winchester…
There has been relatively little coverage of the religion aspects of this in the media until recently. A few items:
Telegraph Martin Beckford today has Bishop of Winchester warns Christians may have to give up public sector jobs because of secular agenda and last week had Equality Bill ‘dangerously’ trying to force religious belief behind closed doors, bishops warn.
The Sunday Telegraph also had a report by Patrick Hennessy headlined Catholic ban on women priests ‘illegal under Harriet Harman equality bill’ which earned a mention in the Church Times press column by Andrew Brown thus:
Full marks to CARE, the Evangelical pressure group, for getting the most completely bogus story of the week into The Sunday Telegraph, via its political editor, who solemnly informed the readers that Harriet Harman’s Equality Bill would force the Roman Catholic Church to abandon an all-male priesthood.
The Church of England Newspaper last week had UK promises amendments to controversial Equality Bill. I had a report in the Church Times last week which is subscriber-only until tomorrow, Move to erase doubts over Equality Bill and which takes a rather different view.
Today, the Daily Mail has Video urging protest against Equality Bill that ‘infringes Christian freedom’ to be screened in churches.
Press releases from conservative organisations:
On the other hand:
The Hansard record of day three can be found here as a PDF, or starts here in html.
The official news report of the day is here.
There was an interesting debate on an amendment proposed by Lord Alton of Liverpool. This starts here.
What the Bishop of Winchester had to say can be found here.
The article in The Times yesterday by Shami Chakrabarti referred to in the debate, can be found here.
The Bishop of Winchester’s amendment dealing with Gender Reassignment and the Marriage Act was accepted without any difficulty by the Government. The debate about that starts here (the Bishop of Southwark stood in as the Bishop of Winchester had to leave before this was reached).
A further exchange of religious interest occurred starting here. The topic being discussed was the content of television programmes. The Archbishop of York participated in this debate.
The amendments to Schedule 9 will now certainly be discussed on Monday afternoon. There has been a change to the texts of Amendments 98 and 99. New wording is here. The old wording was in both cases simply: leave out “proportionate”. The wording was not in the 2003 SO Regulations, but was put into the Equality Bill in order to make plain on the face of the bill the proportionality requirement of the underlying European Employment Equality Directive 2000.
Updated
The Government has proposed a new definition of when “Employment is for the purposes of an organised religion”.
Here it is:
Employment is for the purposes of an organised religion only if—
(a) the employment is as a minister of religion, or
(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others).
This would replace the current wording found in Schedule 9, Paragraph 2(8).
Update
In order to evaluate this, it may be helpful to recall that this clause is designed to cover a variety of issues, not only sexual orientation.
(a) a requirement to be of a particular sex;
(b) a requirement not to be a transsexual person;
(c) a requirement not to be married or a civil partner;
(d) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;
(e) a requirement relating to circumstances in which a marriage or civil partnership came to an end;
(f) a requirement related to sexual orientation.
The House of Lords continued its examination of the Equality Bill yesterday. Amendments discussed covered clauses 10 to 29. Here is the news page with links.
The Hansard record can be found starting here, or the PDF file is over here.
Two of the amendments I had previously listed as interesting were debated.
Amendment 20 (Baroness Varsi and Baroness Morris) which would remove the word “philosophical” from the definition of “belief”, was debated, follow that from here.
At the end of the evening, Lord MacKay of Clashfern proposed Amendment 57A:
“Conscientious objection
Nothing in this Act shall have the effect of requiring a person (A) to provide a good or service to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection.”
Read the debate on that from here.
Also, yesterday there was a change in the list of peers sponsoring the amendment to delete Sch 9 Clause 2 Para 8. Baroness Varsi’s name was removed, and was replaced by Baroness Butler-Sloss. Lady Butler-Sloss also added her name to those sponsoring the amendment to delete the word “proportionate” in in paragraphs 5 and 6 of Schedule 9 clause 2.
See earlier article here which includes a list of some of the amendments of interest.
Yesterday’s committee hearings dealt with Clauses 1 to 9. No amendments were agreed. The Hansard record begins here. The Parliament website has this news report with links.
Amendments considered included one from the Bishop of Chester on gender reassignment. (The Bishop of Chichester spoke on his behalf.)
The latest (Tuesday morning) list of the remaining marshalled amendments (excludes those considered yesterday) can be found here. Committee hearings resume on Wednesday.
The Bishop of Winchester’s amendment relating to marriages and gender reassignment discrimination has now reappeared in much shorter form then before:
58A* Page 143, line 2, at end insert—
GENDER REASSIGNMENT
A person does not contravene section 29, so far as relating to gender reassignment discrimination, only because of anything done in reliance on section 5B of the Marriage Act 1949 (solemnisation of marriages involving person of acquired gender).”
Baroness Noakes and Baroness Neuberger have added their names to Lord Alli’s amendment relating to the venues for civil partnerships.
Meanwhile in the House of Commons, two questions were asked relating to the EU “reasoned opinion”.
Stewart Jackson (- Shadow Minister, Communities and Local Government; Peterborough, Conservative)
To ask the Minister for Women and Equality if she will place in the Library a copy of the reasoned opinion of the European Commission on the compliance of the UK’s equality legislation with the EU Equal Treatment Directive.
Maria Eagle (Minister of State (also in the Government Equalities Office), Ministry of Justice; Liverpool, Garston, Labour)
The understanding between the European Commission and member states is that infraction correspondence remains confidential. The Commission publishes the fact that a Reasoned Opinion has been sent, but not the letter itself. The Government will therefore not be placing a copy of this Reasoned Opinion in the Library.
Philip Davies (Shipley, Conservative)
To ask the Minister for Women and Equality what recent discussions she has had with the European Commission on UK compliance with EU anti-discrimination legislation; and if she will make a statement.
Maria Eagle (Minister of State (also in the Government Equalities Office), Ministry of Justice; Liverpool, Garston, Labour)
The European Commission sent two reasoned opinions to the UK Government on 20 November 2009 which questioned the compliance of our domestic legislation with two European Directives in certain respects. We are studying these reasoned opinions carefully and will reply to the Commission towards the end of January.
Amended again Monday afternoon
My report in last week’s Church Times on the December debate in the House of Lords, can be now be read at Religion is more than this, say peers.
The consideration of the Equality Bill will resume next week, when the House of Lords considers the bill in Committee. The following five dates have been allocated: Monday 11 Jan, Wednesday 13 Jan, Tuesday 19 Jan, Monday 25 Jan, Wednesday 27 January.
Numerous amendments have been proposed, see the new marshalled list of amendments to be moved in committee, starting here.
Monday And now this revised marshalled list starting here.
The Conservative party spokesperson, Baroness Varsi, together with Baroness O’Cathain, Lord Anderson of Swansea, and the Bishop of Winchester have put down an amendment to strike out the whole of the new definition of the purposes of organised religion. Amendment 100. The latter three have also put down an amendment to remove the word “proportionate” in paragraphs 5 and 6 of Schedule 9 clause 2. Amendments 98, 99
Baroness Varsi and Baroness Morris have also put down an amendment which would remove the word “philosophical” from the definition of “belief”. Amendment 20
The Bishop of Winchester had put down an amendment dealing with religious marriages and gender reassignment discrimination. This is not in the current list because it has been withdrawn for redrafting.I am told it will be resubmitted shortly.
The Bishop of Chester has put down an amendment to insert the words “under medical supervision” into the definition of gender reassignment. Amendment 10
Baroness Turner of Camden has put down amendments to ensure that the School Standards and Framework Act 1998 will have to be read in light of Schedule 9 (3). Amendments 124, 125 and 137
She has also put down amendments:
- to modify paragraph 8 so that it reads (addition in bold):
Employment is for the purposes of an organised religion only if the purpose of the employment wholly or mainly involves—
Amendment 100
- to qualify Clause 3 of Schedule 9 (Other requirements relating to religion or belief) to add:
(d) A is not operating as a public authority, on behalf of a public authority or operating in relation to a contract with public authorities.”
Amendment 101A
Lord Alli has put down amendments:
- to allow civil partnerships to take place on religious premises Amendment 119A
- to delete the clause in Schedule 9 paragraph 2(4) which reads “(f) a requirement related to sexual orientation.” i.e. the transposition of the 2003 SO Regulations paragraph 7(3). Amendment 97E
Lord MacKay of Clashfern has put down this amendment:
“Conscientious objection
Nothing in this Act shall have the effect of requiring a person (A) to provide a good or service to a person (B) when doing so has the effect of making A complicit with an action to which A has a genuine conscientious objection.”
Amendment 57A
Michael Foster MP Parliamentary Under Secretary of State for Equalities has today announced that the Government will propose an amendment:
Contrary to some reports over the weekend, the Equality Bill will still allow churches to hire only male clergy and will let faith-based charities continue to recruit people of the same faith where this is a requirement of the job, such as care staff who may also be asked to pray with the people they look after. We have been absolutely clear on this throughout the Bill’s passage, but as there has been some misunderstanding around our intentions we will amend the Bill to make this clear beyond doubt.
The following article from the 21 November edition of The Tablet is reproduced by kind permission of the Editor.
Swords crossed over a crucifix by Aidan O’Neill
The Italian Government is seeking to appeal against a ruling from the European Court of Human Rights that could lead to the removal of crucifixes from state school classrooms. A leading human-rights lawyer looks at a case that goes to the heart arguments about the relationship between Church and State.
In the last few years the European Court has, in general, been sympathetic to various attempts to regulate what, in their particular national contexts, the authorities have considered to be excessive individual religious displays. Thus the Court upheld the human rights compatibility of France’s ban on pupils dressing in a manner that made their religious affiliation immediately identifiable. It also upheld a law in Turkey barring from university lectures and tutorials students sporting beards and women wearing Islamic headscarves. In these two decisions the Court confirmed that the French and Turkish principle of laïcité or secularism, with its insistence on the strict separation between Church (or mosque) and State, was consistent with the democratic values of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
In its 3 November 2009 decision in Lautsi v. Italy, however, the European Court appears to have gone significantly beyond this line of case law. The court has now determined that the requirement in Italian law – in place since the 1920s Fascist government under Mussolini – that crucifixes be hung on the walls of the classrooms of state-run schools (originally, alongside a portrait of the king) was incompatible with human rights. The court ruled that such display violated the right of parents to educate their children in conformity with their own religious and philosophical convictions, and the right of their children to believe or not to believe.
The Italian Government argued, somewhat disingenuously, that in context, crucifixes in classrooms need not be understood in religious terms. Instead, the cross could properly be imagined as representing a whole host of ethical values – among them non-violence, equality and dignity, justice, love of neighbour, forgiveness of enemies, freedom of choice, and separation of religion and State – upon which contemporary European democracies were founded. As a matter of history, the humanist values of the Enlightenment were said to have their roots in, or be in reaction against, Christianity. The classroom display of the crucifix could be seen as a reminder of this. The cross in the Italian classroom could therefore be stripped of any specific religious significance or meaning; it could be regarded as nothing more than a cultural relic; or, indeed, it could simply be ignored.
The third party intervener, the Greek Helsinki Monitor human rights organisation, described these arguments as offensive to the Church and to believers. The cross could only be seen as a symbol of religious faith, of a belief in the truth of Christianity. The Court agreed that the primary meaning of the crucifix was as a religious symbol, readily associated with Catholicism. But it considered that the legal requirement to display a crucifix in the classroom could be justified neither on historical nor cultural grounds, nor on the basis of the views of the majority of parents. The court declared that in the context of the provision of public education the state was bound to a “confessional neutrality” and that such state education should be aimed at fostering “educational pluralism” and encouraging “critical thought” among its pupils.
Article 9 of the European Convention proclaims the absolute right of everyone to freedom of thought, conscience and religion. The freedom to manifest one’s religion or beliefs is also said to be a fundamental right, though one which may be limited by law. Such limitation must be shown to be “necessary in a democratic society”.
The right to education is set out in Article 2 First Protocol ECHR. This provides that parents have the right to ensure the education and teaching of their children “in conformity with their own religious and philosophical convictions”. Where the state assumes a role in relation to education and teaching, it must respect that right of the parents.
However, in the Lautsi v. Italy ruling, the European Court would appear to be committing itself to the claim that not only is a strict separation of Church and State permitted under the European Convention but it is actually required by it. Such a claim can certainly not be justified by the plain text of the Convention. It appears to owe more to United States Supreme Court jurisprudence on the separation of Church and State. But this American case law is based on the text of its Constitution’s First Amendment requirement that “Congress shall make no law respecting the establishment of religion”.
This clause has resulted in a seemingly endless line of court cases on such issues as whether Nativity scenes, or the text of the Ten Commandments, can lawfully be displayed on state-owned property; or whether prayers can be said, or oaths of allegiance recited, in public schools.
To apply such an American separationist analysis within a European context simply does not do justice to the wholly different understandings of the proper relationship between religion and the State which have historically existed among the countries of Europe; where, indeed, religious establishment of forms of Christianity – whether Protestant, Orthodox or Catholic – was the traditional norm.
Under Article 43 ECHR, a party has three months from the date of a judgment to request that it be reheard on appeal before the Grand Chamber of the Court with its 17 judges. To be successfully referred to the Grand Chamber the case must be found by the court to raise serious question of interpretation of the Convention or some other issue of general importance.
The questions raised in Lautsi clearly highlight tensions within the European Court itself. In June 2007, in Folgerø v. Norway, the Grand Chamber split nine to eight on the question of whether a group of avowed humanist parents should be able to demand the complete exemption of their children from a state-sanctioned school course on Christianity, religion and philosophy. The dissenting eight-strong minority considered that it was precisely the increasing pluralist nature of Norwegian society that justified the Norwegian state in making such provision, which emphasised the historical importance of Christianity in Norway. The state had a duty to ensure mutual tolerance between differing groups in society and, in the minority’s view, providing for a common state education in religion and ethics, which did not seek to proselytise and convert but to inform, was a proper means to that end.
It is clear that we have not heard the last word on these issues.
■ Aidan O’Neill QC is a Scottish advocate, based in Edinburgh, and a barrister member of Matrix Chambers in London.
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.
There have been some rather odd articles about this bill recently.
Telegraph Simon Caldwell and Martin Beckford Minister predicts legal battles between churches and atheists over Equality Bill and later George Pitcher Equality legislation means our very right to believe is under fire
Catholic Herald Simon Caldwell Get ready to be sued, Minister tells Christians
And various repeats in the blogosphere, of which this is perhaps the most extreme headline: The Equality Bill: Will A New Law Essentially Outlaw Evangelical Christianity And Roman Catholicism In The U.K.?
Leading to items from the lobbying organisations:
Christian Institute MP: Equality Bill will lead to legal action against churches and Equality Bill could drive faith from ‘public sphere’
Christian Concern for our Nation Act to protect employment freedom for Churches
Much of this criticism is unjustified by the facts (I was present at the press briefing with Michael Foster), and I will write more about this soon.
Meanwhile, the BBC has published a helpful reminder of the main objectives of the bill: What the new Equality Bill means for employers
You can read the entire debate here at Hansard and continued here, or at TheyWorkForYou it starts here, and then continues here (the debate was interrupted for a discussion of the Defence Statement).
The following individual speeches are interesting:
Archbishop of York and also this.
Bishop of Chester, and also this.
Lord Alli
Lord Harries of Pentregarth
Baroness Gibson of Market Rasen (questions about women bishops)
Baroness Royall of Blaisdon, summing up the debate for the government.
More about this later.
Updated Thursday morning
The Court of Appeals (Civil Division) has today dismissed the appeal of Lilian Ladele from the Employment Appeal Tribunal decision of December 2008, which found in favour of the London Borough of Islington.
The full text of today’s judgment can be found here. A printable version here is in .rtf format.
Initial press reports:
Press Association Registrar loses discrimination case
Reuters Christian registrar loses gay wedding appeal
Islington Tribune Registrar who refused to carry out civil partnership ceremonies loses appeal
Ekklesia Partnerships registrar loses case in Court of Appeal
BBC Christian registrar loses same-sex partnership case
Updates
Press Association Pressure groups welcome same-sex discrimination ruling
Symon Hill Cif belief A judgment Christians should celebrate
Christian Institute Court rejects appeal in Christian registrar case
Christian Concern for our Nation Court of Appeal rules against Christian Registrar who refused to conduct civil partnerships
The Evangelical Alliance Ireland writes:
Evangelical Christians and the Civil Partnership Bill 2009
The Irish Government has published a Bill that will establish Civil Partnerships for same sex couples to give them rights, obligations and protections once they are registered with the state. Many of the rights are similar to those currently offered to married couples under Irish Law. In response to this Evangelical Alliance Ireland has just produced a four page paper. Read this document here. [PDF]
The government proposals can be found here. Or in more easily digested form here.
A recent Associated Press report: Irish lawmakers open debate on gay rights bill.
The Equality Bill that was passed in the House of Commons recently is now before the House of Lords. The first debate, i.e the Second Reading, will occur on Tuesday 15 December, starting soon after 2.30 pm.
Earlier reports of the Commons debate can be found here.
My own report is in today’s Church Times at Attempt to remove ‘religion’ clause in Equality Bill fails. That is currently available only to subscribers, but the full text is below the fold.
Meanwhile, the RC bishops have issued a briefing, which has been reported in a somewhat alarming tone in several places:
Catholic Herald Equality Bill threatens integrity of the priesthood, bishops tell Harman by Simon Caldwell
Catholic News Service English, Welsh bishops say Equality Bill redefines who can be priest also by Simon Caldwell
There is also a less sensational report by Isabel de Bertadano in the Tablet but that too is subscription-only.
More on this topic to follow.
Church Times 11 December report
Attempt to remove ‘religion’ clause in Equality Bill fails
by Simon Sarmiento
AN ATTEMPT to remove a clause in the Equality Bill defining the “purposes of organised religion” was defeated in the House of Commons on Wednesday of last week. The Church of England had raised objections to the wording (below) when it first appeared (News, 20 November).
The Bill received its Third Reading, when only eight MPs voted against, and it now passes to the House of Lords. A Second Reading debate there is scheduled for next Tuesday.
The amendment, proposed by David Drew, MP for Stroud (Labour), sought to delete the new definition entirely. Speaking in support of Mr Drew, Mark Harper, MP for the Forest of Dean (Conservative), argued that the phrase “wholly or mainly” was too narrow. Many full-time ordained Christian ministers would be excluded, since only a small proportion of their time was spent leading worship or teaching doctrine.
When voted upon, the amendment was defeated by 170 votes to 314.
On 26 November, the Bishop of Ripon & Leeds, the Rt Revd John Packer, had also spoken about this clause during the debate in the House of Lords on the Queen’s Speech. He said: “I cannot imagine that any Christian would recognise their faith in those descriptions. . . In practice, especially in smaller churches or faith groups, many employees play a multi-tasked role which could fall foul of the requirement that their employment wholly or mainly involve leading worship.”
During the Commons debate, several MPs referred to a “reasoned opinion” that the European Commission had issued to the UK government on 20 November. The Commission stated that the exceptions in current UK law to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than permitted by the EU directive.
The EU Commissioner for Equal Opportunities, Vladimír Špidla, said: “We call on the UK Government to make the necessary changes to its anti-discrimination legislation as soon as possible so as to fully comply with the EU rules. In this context, we welcome the proposed Equality Bill, and hope that it will come into force quickly.”
The Government has not yet released the full text of the opinion, but Mr Harper, who had obtained a copy from Brussels, told the Commons that it said: “The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law, and bring UK law into line with the Directive.”
Two other amendments sought to permit religious care-homes for the elderly and religious adoption agencies to restrict their services on the grounds of sexual orientation. They were not adopted.
During the House of Lords debate, an amendment is expected to be tabled to allow religious buildings to be used to hold civil partnership ceremonies. Ben Summerskill of Stonewall, a gay-rights group, said: “We are very clear that this is an issue of religious freedom, and if faiths want to celebrate the ceremonies of two men or two women, it’s not for someone else to say you can’t do that.”
(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).
The UK Equality Bill passed its Third Reading in the House of Commons on Wednesday, and has now moved to the House of Lords, where the Second Reading is scheduled for 15 December.
The Hansard record of the debate on Wednesday starts here, or TheyWorkForYou has it in a rather different format here. Only 8 members voted against the bill at Third Reading.
An amendment to delete entirely Schedule 9, Clause 2, Paragraph 8, was proposed by David Drew Labour MP for Stroud, who made this speech in support of it. But when put to the vote it was defeated Ayes 170, Noes 314.
The debate on the religious exemptions and related topics starts at this point.
There has been some comment about the bill on blogs. For example Cranmer has written EU forces Government to put gay equality over Christian conscience and also European Commission ‘lobbied Parliament’ to pass Equality Bill which refers to the debate on Wednesday.
The full text of the EU Reasoned Opinion has not been published by the Government, but the Conservatives have obtained a copy from Brussels (they said) so it is surely only a short matter of time before it is available. Meanwhile, according to Mark Harper Conservative MP for the Forest of Dean it does say this:
“The UK Government has informed the Commission that the new Equality Bill currently under discussion before the UK Parliament will amend this aspect of the law and bring UK law into line with the Directive.”
Earlier in the House of Lords, the Bishop of Ripon and Leeds had used the occasion of the Queen’s Speech to speak there about the Equality Bill. You can read his speech in full here.
Updated
An announcement from the Cutting Edge Consortium:
Cutting Edge Consortium marks its launch by inviting you to continue the debates of the Faith, Homophobia, Transphobia & Human Rights Conferences 2007 & 2009
“EQUALITY BILL: OPT IN vs OPT OUT”
An open meeting to discuss religious exemptions to the legislation on sexuality and gender identity in the Equality Bill
Hosted by Clare Short MP, speakers will include:
- Sarah Bourke (Tooks Chambers)
- Andrew Copson (British Humanist Association)
- Maleiha Malik (Muslim Women’s Network)
- Michael Rubenstein (Equal Opportunities Review)
Date/Time: 1900-2100, Tuesday 24th November
Venue: Committee Room 5, House of Commons
The Cutting Edge Consortium includes the Lesbian & Gay Christian Movement, Interfaith Alliance UK, British Humanist Association, Muslim Education Centre Oxford, Liberal Judaism, Trades Union Congress, and A:Gender, Centre for the Study of Christianity & Sexuality, Ekklesia, Inclusive Church, LGBT Consortium of Voluntary & Community Organisations.
Contact email: cuttingedgeconsortium1@googlemail.com
Ekklesia has a report of the meeting, see Religious and secular groups unite to launch anti-discrimination coalition.
Jamie Doward reports in today’s Observer:
The government is being forced by the European commission to rip up controversial exemptions that allow church bodies to refuse to employ homosexual staff.
It has emerged that the commission wrote to the government last week raising concerns that the UK had incorrectly implemented an EU directive prohibiting discrimination on the grounds of a person’s sexual orientation.
The ruling follows a complaint from the National Secular Society, which argued that the opt-outs went further than was permitted under the directive and had created “illegal discrimination against homosexuals”.
The commission agreed. A “reasoned opinion” by its lawyers informs the government that its “exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive”.
The highly unusual move means that the government now has no choice but to redraft anti-discrimination laws, which is likely to prompt a furore among church groups.
Read Brussels says churches must lift ban on employing homosexuals.
According to an EU press release, found via eumonitor.net:
Employment equality rules: reasoned opinion to the UK; case closed for Slovakia
The European Commission has today sent a reasoned opinion to the United Kingdom for incorrectly implementing EU rules prohibiting discrimination based on religion or belief, disability, age or sexual orientation in employment and occupation (Directive 2000/78/EC, see also MEMO/08/69 ). It has also decided to close infringement proceedings concerning the same Directive against Slovakia as their national legislation has been brought into line with EU requirements.
“Tackling all forms of discrimination – especially at work – has been a priority for this Commission and for me personally. Our legal action has led to better protection against discrimination in workplaces across the EU,” said Equal Opportunities Commissioner Vladimír Špidla. “We call on the UK Government to make the necessary changes to its anti-discrimination legislation as soon as possible so as to fully comply with the EU rules. In this context, we welcome the proposed Equality Bill and hope that it will come into force quickly,” he added.
In the reasoned opinion sent to the United Kingdom, the Commission pointed out that:
- there is no clear ban on ‘instruction to discriminate’ in national law and no clear appeals procedure in the case of disabled people;
- exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive.
There’s a response to this news item at Cranmer EU forces Government to put gay equality over Christian conscience.
Today’s Church Times carries a report, written by me, about the CofE and the Equality Bill.
See Committee rejects C of E proposal on Equality Bill.
THE parliamentary Joint Committee on Human Rights (JCHR) disagreed strongly with the Archbishops’ Council over a proposal to modify the Equality Bill, it emerged this week. The Bill awaits the Report stage before its Third Reading in the House of Commons…
Links to the various documents mentioned can all be found at this earlier TA article JCHR report on Equality Bill.
Those coming late to the Equality Bill can catch up by reading the House of Commons Library Research Paper, Equality Bill Committee Stage Report, just published, and available here as a PDF file. This summarises all the activity of recent months, and explains what amendments have, and have not, been made to the bill as originally published.
Updated
The Joint Committee on Human Rights has published its report Legislative Scrutiny: Equality Bill.
The web version of this report starts here. A PDF version is also available from here.
The portions of the report relating to Religion are interesting.
Go here for the section headed EMPLOYMENT BY ORGANISATIONS BASED UPON RELIGION OR BELIEF. This starts at paragraph 164, and should be read in full. The evidence given to another committee by the CofE and Roman Catholic Church representatives is considered. Evidence given to this committee by the Church of England can be found starting at page Ev 114 of the PDF. That is page 250 of 344! A third memorandum from the Board of Education and the National Society is at page Ev 190 (322 of the PDF).
Update
There are direct links to each of the Church of England memoranda:
The JCHR conclusions include these paragraphs:
174. We welcome the clarification in Schedule 9(2) and 9(3) of the circumstances in which occupational requirements linked to a religious belief or ethos can be imposed by faith-based organisations and organised religious groups. We accept that some limitations on non-discrimination on grounds of religion or belief may be justified and appropriate in relation to religious organisations and that the exemption in Schedule 9(2) fulfils that role. We also consider that in general the provisions of Schedule 9(2) and 9(3) strike the correct balance between the right to equality and non-discrimination and the rights to freedom of religion or belief and association, especially if interpreted in line with the approach set out in Amicus v Secretary of State for Trade and Industry, which emphasised the need for such exceptions to the general prohibition on direct discrimination to be “construed strictly” on the basis that they are “a derogation from the principle of equal treatment”.
175. We consider that substantial grounds exist for doubting whether the “religious ethos” exception provided for in Schedule 9(3) permits organisations with a religious ethos to impose wide-ranging requirements on employees to adhere to religious doctrine in their lifestyles and personal relationships, by for example requiring employees to manifest their religious beliefs by refraining from homosexual acts. We agree with the Government that it is “very difficult to see how in practice beliefs in lifestyles or personal relationships could constitute a religious belief which is a requirement for a job, other than ministers of religion” (which is covered by a different exception). This should put beyond doubt the position that the exemption in Schedule 9(3) cannot be used to discriminate on the basis of sexual conduct linked to sexual orientation. We support this view and recommend that this be made clear in the Bill.
176. We are concerned about the status of employees of organisations delivering public services who find themselves as employees of organisations with a religious ethos who have been contracted to provide the public service. They have a right not to be subjected to religious discrimination on the basis of the ethos of the contracting organisation if they are otherwise performing their job satisfactorily. We are concerned that the widespread use of the “religious ethos” exception set out in Schedule 9(3) by organisations based on a particular religion or belief who are contracted to deliver services on behalf of public authorities could result in public functions being discharged by organisations in receipt of public funds who are nevertheless perceived to discriminate on the basis of religion or belief.
For the background to this, see previous posts:
Waddington amendment upheld in Lords July 2009
bishops oppose repeal of Waddington amendment May 2009
Anglican and Roman church bodies comment jointly November 2007
incitement extension proposed October 2007
Today, the UK government finally accepted, with reluctance, the amendment supported repeatedly, by the House of Lords and rejected, also repeatedly, by the House of Commons.
See today’s news reports:
The Bishop of Winchester spoke in one of the debates, and you can read what he said here.
The Hansard record of the adjournment debate on “The Application of the Sex Discrimination Legislation to Religious Organisations” is now available, starting here.
TheyWorkForYou version is now also available here.
Video of the debate is available at BBC Democracy Live, over here.
Update
Riazat Butt has written a report, now on the Guardian website, The church of England: above the law?
On Wednesday 11th November at 3.30pm in Westminster Hall, Robert Key, MP for Salisbury, has arranged for a debate to take place on:
“The Application of the Sex Discrimination Legislation to Religious Organisations”.
WATCH has more information here.
More information about Westminster Hall debates is available here. Debates are open to the public.
The Church Times carries a report on this, written by me, and headlined Same-sex marriage approved.
THE Kyrkomötet (General Synod) of the Church of Sweden approved a recommendation that the Swedish Church should conduct weddings in church for both heterosexual and same-sex couples last week. The marriage liturgy will be amended slightly to reflect this.
The changes will take effect from Sunday 1 November. No individual cleric will be obliged to perform such a service, but every parish will be required to make provision for the liturgy, and to use visiting priests if necessary. The voting was 176 in favour with 62 against, and 11 abstentions…
The Church of Sweden has published a PDF file in English, containing several documents explaining the background leading up to this decision. You can find it here: Information on a possible decision regarding same-sex marriages.
The Church Times Question of the Week is related to this topic.
Earlier reports are here.
Updated again Monday
From The Local the English language news website in Sweden, comes this report:
The Synod of the Lutheran Church of Sweden has come down in favour of church weddings for homosexuals in a vote held on Thursday morning.
The decision, which is based on a proposal from the church’s governing board, means that the Church of Sweden will conduct wedding ceremonies for both heterosexual and homosexual couples.
The proposal was approved by 176 of 249 voting members…
Our own correspondent reports the vote was 176 Ayes, 62 Noes, 11 Abstentions.
Updates
Swedish Radio has a more detailed report at Church Says Yes to Gay Weddings.
Independent Swedish church agrees to conduct gay weddings by Ilze Filks of Reuters
BBC Sweden church allows gay weddings
AFP Sweden’s Lutheran church to celebrate gay weddings
Religious Intelligence George Conger Sweden church allows gay weddings
Monday updates
Bishop David Hamid has written about this on his blog, Church of Sweden Approves Marriage of Same Sex Couples.
Andrew Brown has written at Cif belief Swedish church not so gay-friendly.
ENS has publised a report from ENI by Trevor Grundy and Fredrick Nzwili Lutheran decision on same-sex marriage draws flak from Africa, England.
The Fawcett Society promotes 30 October as Equal Pay Day.
Ekklesia has published an article Women’s dignity and the church’s tainted love by Fran Porter which discusses the relationship between this and the Church of England, including, but not limited to, the issue of women as bishops.
…For those who argue that opposing women bishops is not about the secular discourse of equality but about the theological discourse of faith, the two issues of the gender pay gap and women’s potential inclusion to the episcopate do not speak to each other. Indeed, it may be possible to support the former while opposing the latter.
The Church of England has excluded its own governance and practice from equality legislation by claiming the Section 19 exemption for organised religions in the 1975 Sex Discrimination Act, which already means women clergy (deacons and priests) are not covered by the legal employment protections of that Act.
In particular, a Parochial Parish Council (PCC) can advertise for male clergy only to apply for vacancies of incumbent, curate or non-stipendiary minister and may also ban a woman priest from celebrating the Eucharist within parish boundaries. [3]
More generally, the language of equality is not a first language for theology or more specifically theological anthropology; Christian understanding of human beings and how they relate to one another is expressed in language of human personhood created in the image of God more than it is through modern sensibilities of equality. Equality is not irrelevant, but it has a derivative value.
Hence, for Christians, the equality that human beings have with each other comes from their commonality in being creatures of the one Creator. The dignity of each human person comes from our being made in the image of God. Similarly, the inalienable rights that human beings possess without distinction, for Christians, are rooted in the understanding of God as Creator who bestows innate worth on humanity.
Yet this framework of personhood that enables those opposed to women bishops (and women priests) to argue that their position is one of theology and faith (Jesus ordained and gave authority only to men) and not one of secular equality or justice [4], is the same framework in which those who support women’s ordination live and breath…
Recently the Quakers made news on this topic. See for example, this report in The Times by Ruth Gledhill Quakers back gay marriage and call for reform:
The Quakers sanctioned gay marriages yesterday and called on the Government to give same-sex couples who marry in their ceremonies the same standing as heterosexual people.
Other Christian churches and religious denominations have approved blessings for same-sex civil partnerships but the Quakers are Britain’s first mainstream religious group to approve marriages for homosexuals…
Some background to this decision may be found in one of the papers from The Interfaith Legal Advisers Network meeting in June 2008:
At the second meeting, Network Members shared their experiences on how their own religious traditions interact with the law on marriage, including divorce, re-marriage, interfaith marriages and civil partnerships.
The papers are available as PDF files:
The concluding paragraphs of Mark Hill’s paper make interesting reading:
Thus we find ourselves in the curious position whereby Church of England clergy (i) are under a legally enforceable duty to solemnise the matrimony of atheists, non-believers and adherents of other faiths; (ii) have a statutory discretion to refuse to marry divorcées, transgendered and certain others exercisable in accordance with their conscience irrespective of the religious beliefs and affiliations of the couple; and (iii) are canonically prohibited from conducting a service of blessing following the registration of a civil partnership. Ironically, devout Christians in the latter category are denied the ministrations of the Church by way of a blessing whereas Muslims, Buddhists, Sikhs, Jews and non-believer couples can compel the use Church of England rites and liturgy and the ministrations of its clergy. The pastoral damage which might result from this mixed message cannot be adequately explained away as an anomaly of the historic accident of establishment in a plural society.
CONCLUSION
The Civil Partnership Act 2004 is one of a number of pieces of legislation that have had an impact upon religious communities and individuals. The Act creates a newly recognised legal relationship which cannot be entered into on religious premises, at which no religious service can be used, and the blessing of which is expressly forbidden by the Church of England. Moreover despite political and judicial rhetoric that civil partnerships are different and distinct from marriage, the exact differences have yet to be fully explored and clearly articulated by the domestic judiciary or by the European Court of Human Rights in Strasbourg. Although the Act defines the relationship a being for two individuals of the same gender, physical intimacy, still less sexual fidelity, do not feature in the provisions of the Act. This means that the House of Bishops’ Pastoral Statement is wholly consistent with the letter of the legislation; whether it accords with popular perceptions of the legislation is another matter. Future judicial interpretation of the Act may pose challenges for the clergy of the Established Church. The implications for Church of England clergy who are commonly understood to be under a legal duty to solemnise the marriage of parishioners creates what can at best be styled a pastoral anomaly. Whether promoted by accident or design, the effects of the Civil Partnership Act on the nature of Establishment in times of changing social mores are far from insignificant and not yet fully understood.
(See PDF for omitted footnotes.)
Here’s a document I should have linked over two years ago, but I only discovered its existence today.
The Church of England Archbishops’ Council published this guidance on the Equality Act 2006, prepared by the Legal Office at Church House (.rtf format), in May 2007.
As the CofE website page says:
Equality Act 2006
The Equality Act 2006 – relating to religion and belief, and sexual orientation – came into force on 30 April 2007. Guidance on this legislation has been issued by the Archbishops’ Council and is available here. The guidance is intended as a basic guide for dioceses, parishes and incumbents and should not be treated as a substitute for specific legal advice.
The Law and Religion Scholars Network has published a database of recent cases dealing with religion and law.
The database can be found here. (hat tip Neil Addison).
In considering the Equality Bill and its applicability to the Church of England and other religious organisations, it may be worth noting how narrow is the scope of the existing Clause 7(3) in the current Employment Equality (Sexual Orientation) Regulations 2003. Clause 7(3) is the provision that provides an exemption to parts of the regulations when employment is for purposes of an organised religion.
What I mean by this is not the issue of to whom the exemption may apply, which has recently become a item of controversy, but the separate issue of to which parts of the regulations the exemption applies.
The corresponding wording of the Equality Bill in Schedule 9 is designed to replicate exactly the existing regulations. Here is the relevant wording of the current Regulation 7 (emphasis added):
7. - (1) In relation to discrimination falling within Regulation 3 (discrimination on grounds of sexual orientation) -
(a) regulation 6(1)(a) or (c) does not apply to any employment;
(b) regulation 6(2)(b) or (c) does not apply to promotion or transfer to, or training for, any employment; and
(c) regulation 6(2)(d) does not apply to dismissal from any employment,
where paragraph (2) or (3) applies.
These are the only clauses of the regulations to which clause 7(3) applies.
All other parts of the regulations apply even when employment is for purposes of an organised religion. This includes all other clauses within Regulation 6, and all other regulations, e.g. Regulation 4, Discrimination by way of victimisation, and Regulation 5, Harassment on grounds of sexual orientation. In connection with the latter, Regulation 6, Clause 3 reads:
(3) It is unlawful for an employer, in relation to employment by him at an establishment in Great Britain, to subject to harassment a person whom he employs or who has applied to him for employment.
Regulation 5 defines the term “harassment” for the purposes of these regulations.
LGCM has published a briefing document on the Equality Bill.
You can find the full text of this document over here.
Three developments which though not directly related to the Church of England are relevant to the general topic of such legislation in the UK.
Third Sector reports in Charity takes gay adoption case onward to High Court that:
The Catholic adoption agency that was told by both the Charity Commission and the Charity Tribunal that it could not restrict its services to heterosexual parents will take its case to the High Court.
The tribunal granted permission for the appeal by Catholic Care (Diocese of Leeds) earlier this month (Third Sector Online, 8 July), but the charity was unsure at the time whether it would go ahead.
Mark Wiggin, chief executive of Catholic Care, told Third Sector the charity would pursue the appeal, but he was unable to give any details about how the case would be funded. Taking the case to the Charity Tribunal cost the charity about £75,000…
Last week in the Tablet the RC Archbishop of Cardiff, Peter Smith wrote about the Equality Bill. His article is titled Voice that must be heard.
English and Welsh Catholic bishops warn that equality legislation currently before Parliament poses a threat to religious freedom. Here the chairman of their Christian Responsibility and Citizenship Committee explains why it is so important to challenge the secular status quo.
And, the RC bishops responded formally to the UK Consultation on the European Commission Proposal for an Equal Treatment Directive. They issued a press notice, and published their response in full, as a PDF. In it they assert that:
…the Church is not seeking special provisions which exempt it from universally applicable requirements.
They do however argue that:
…in the Church’s view an additional sub-paragraph is needed confirming that differences of treatment shall not constitute discrimination where such differences are required to enable a religious body to function in accordance with its ethos. A provision of this nature would go a long way to ensure that competing rights are balanced, rather than religious sensibilities being ignored or becoming the subject of tendentious claims.
Jonathan Petre at the Daily Mail has a report: ‘Britain has become a cold place for Christians’ - Bishop warns.
A leading Church of England Bishop has warned that Britain has become a ‘cold place’ for Christians because of a raft of controversial equality laws.
The Bishop of Winchester, Michael Scott-Joynt, criticised the new Equality Bill, due to be law next year, which will force religious organisations that regard same-sex relationships as sinful to employ gay workers.
In a foreword to a report by the pressure group Christian Action Research and Education, the Bishop wrote: ‘The sad fact is that Britain – which owes so much to its Christian heritage – is increasingly becoming a “cold” place which, as any reflection on the fruit of Christian good works will demonstrate, is not in the general interest of society.’
He said there appeared to be a ‘concerted’ attack on the rights of Christians and when there were clashes, gay rights triumphed.
In the debate on retaining the “Waddington amendment” reported earlier, the bishops of Chichester and Winchester both made speeches.
Hansard reports the full texts:
Bishop of Chichester
Here’s an extract from his contribution:
…The question that we are facing in this debate is accurately described as one of free speech. What is at stake is whether your Lordships’ House and this Parliament intend to outlaw open discussion and teaching, not just among Christians but among others, of views that differ from the currently dominant political orthodoxy, and therefore privilege, in the face of others, that currently dominant orthodoxy. To be explicit, I mean the orthodoxy that sexual preference is as innate and fixed as ethnicity, and that sexual preference or orientation is more akin to ethnicity than to religious belief. That is the current political orthodoxy that lies behind the Government’s Clause 61. People of all sorts in this country need to be assured, peaceably and quietly, whether on street corners, in churches, mosques, synagogues or wherever, that they are free to express views that others may strongly disagree with but which question the current dominant political orthodoxy.
Lord Lester of Herne Hill: The right reverend Prelate had the good fortune not to hear what I had to say. I first reassure him that I believe everything he just said to be amply protected by the law. Secondly, although he refers to what he calls “current political orthodoxy”, surely even a Lord Spiritual would accept that there is scientific evidence to show that the reason why people are gay is innate and not to do with some kind of personal choice.
The Lord Bishop of Winchester: No. My own studies, which I suspect are comparable to that of the noble Lord in these matters, suggest that that is the case for some of those who understand themselves to be gay but for others it may not be. Substantial scientific, psychological and medical research points to the statement that I made a moment ago. That is why I say that this question is by no means settled. To pass law on the assumption that we can use the language of sexual orientation and believe that we are talking about something that is absolutely fixed and clear, as ethnicity might be thought to be, is a mistaken political orthodoxy…
Mr Clive Scowen (London) asked the Secretary General:
Q. Have any representations been made to HM Government, or briefings given to members of Parliament and peers, concerning the Equality Bill currently before Parliament, in particular relating to the likely impact of its provisions on Christian employers wishing to recruit committed disciples of Christ wishing to fashion their lives according to biblical precepts and, if so, what in outline was the substance of those submissions and briefings?
Mr William Fittall replied:
A. There is a copy on the Church of England website of the substantial submission produced by the Archbishops’ Council in response to the Government’s earlier consultation exercise. We produced a briefing document for MPs for the Second reading of the Bill and I gave oral evidence to the Bill Committee on 9 June at which, with representatives of the Catholic Bishops’ Conference and Board of Deputies I argued strongly against the narrowing of the provisions for religious organisation in relation to employment. Our lobbying, in partnership with others, continues both publicly and privately.
Two supplementaries were asked:
The materials mentioned by Mr Fittall can be found:
Submission to the earlier consultation (A Framework for Fairness)
For the background to this, see bishops oppose repeal of Waddington.
The relevant bill reached the House of Lords this week, and as the Independent reports,
Peers today defeated the Government’s attempt to overturn a “free speech” defence to the law on homophobic hatred.
The move by Tory former Home Secretary Lord Waddington to uphold the provision was passed by 186 votes to 133, majority 53.
Read ‘Free speech’ defeats incitement laws by Nicholas Randall and Anthony Looch, Press Association.
The BBC also reports it as Labour defeat on incitement laws.
Riazat Butt has written a comment article on Cif belief Free speech or homophobia?
…The Bishop of Winchester, a senior Anglican cleric, said: “What is at stake is whether this House and this Parliament intends to outlaw, among not just Christians but others, open discussion and teaching of views that differ from the currently dominant political orthodoxy.”
Some peers, as well as the Ministry of Justice, were disappointed with today’s result, saying the free speech provision would be used as a defence by those looking to incite hatred towards gays and lesbians.
In what was portrayed as a battle for free speech, a coalition of Anglican bishops, Conservative peers, Labour malcontents and leading crossbenchers united to block the proposals…
The previous report on this matter is at RC adoption agency loses appeal.
The latest development is that the Charity Tribunal has given approval for an appeal to the High Court against some of its recent findings.
The full text of its decision on the appeal is here: Ruling on Catholic Care’s request for Permission to Appeal (6 July 2009)
Charity Finance explains:
Catholic Care (Diocese of Leeds) has been granted leave to appeal to the High Court against certain parts, but not all, of the Charity Tribunal’s recent decision not to allow it to discriminate against gay people.
As the case is believed to have been the first in which a court or tribunal was asked to consider the correct interpretation of regulation 18 of the Equality Act (Sexual Orientation) Regulations 2007, the Tribunal said the case “raises a point of law of public importance which it would be appropriate for the High Court to consider on appeal”.
…But now it has said that Catholic Care can take the case to the High Court to argue seven of its 14 grounds for appeal. The seven that are allowed collectively raise the same point of law, namely that the Tribunal erred in its interpretation of the Equality Act (Sexual Orientation) Regulations 2007 and its interpretation of regulation 18 in particular.
However, it will not allow the charity to appeal against the other seven points raised, concluding that these were “misconceived”.
Third Sector also has a report.
Any appeal will presumably also be of great interest to the Scottish Charity Regulator, which appears to have allowed a Scottish RC agency to make similar changes to its trust deed.
Updated Tuesday
This week’s edition of The Tablet has a news report, unfortunately subscriber-only until next Friday, that the Attorney-General, Baroness Scotland “has pledged to help the Church gain amendments to parts of the proposed Equality Bill.”
The essence of this report is however contained in the article published by the National Secular Society and titled Catholic Attorney General seeks to water down protections under Equality Bill.
There is some confused reporting here. It’s not clear whether the confusion is due to the reporter, or to what Mr Kornicki said.
The clause that deals with exemptions on the basis of Religion as the “protected characteristic” is Schedule 9, Clause 3.
This is entirely separate from Clause 2, which deals with exemptions on various other bases not including Religion, and which incorporates the new explicit definition of “the purposes of an organised religion”. The government contends that this definition is not a narrowing of the existing law, but the churches appear not to accept that view.
But in any case, that definition has no bearing on Clause 3, which reads as follows:
Other requirements relating to religion or belief
3 A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—
(a) it is an occupational requirement,
(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
Note that this exemption is available to any organisation “with an ethos based on religion or belief” and is not limited to “organised religion” at all.
So it is unlikely, I think, that what Baroness Scotland, Richard Kornicki, and Stephen Pound are concerned about is in fact to do with discrimination “against those who don’t share their faith”. It’s much more likely that they are concerned with discrimination on one or more of the grounds listed in Clause 2.
Tuesday update
I have now heard back from the offices of both the Attorney-General and the Catholic Bishops Conference, and can confirm that:
- it is only Clause 2 which is the subject of concern
- Baroness Scotland does not intend to submit any amendment to the bill.
The Times reports today on a new survey of public attitudes in Britain to homosexuality.
See Church ‘out of touch’ as public supports equal rights for homosexuals.
And also Sizeable minority remains hostile to same-sex relationships.
A PDF file containing some of the survey statistics is here.
Update
Ruth Gledhill comments on this in Church ‘out of touch’ on gays, says Times poll.
The House of Commons committee stage continues, you can read the transcripts of all the sessions via this page, or via this page.
The discussion of Clause 12 can be found here.
The discussion on Schedule 9 starts here. See below the fold for an extract.
The Joint Committee on Human Rights also held a hearing on Wednesday. Read the written answers from the Solicitor General to the questions posed in advance by the committee in this PDF file. Several of the questions relate to Schedule 9. One in particular is of interest:
37. Does the Government consider that the provisions of Paragraph 3 of Schedule 9 will permit employers in certain circumstances to make adherence by employees to religious doctrine in their lifestyles and personal relationships a genuine occupational requirement for a particular post?
Paragraph 3 of Schedule 9 permits organisations with an ethos based on religion or belief to require an employee to be of a particular religion or belief. The organisation must show that being of that religion or belief is a requirement for the work, taking into account both the nature or context of it and the ethos of the organisation - the requirement must not be a sham or pretext.
It is very difficult to see how in practice beliefs in lifestyles or personal relationships could constitute a religious belief which is a requirement for a job, other than for ministers of religion (and this is covered in paragraph 2 of Schedule 9). It is perhaps worth noting, however, that if an employee has been employed on the basis of an occupational requirement to be of a particular religion or belief and the employee can no longer be considered to be of that religion or belief e.g. an employee who has lost faith, then the employer would be able to terminate employment as the employee would no longer meet the occupational requirement.Is the position different if a religious organisation is wholly or mainly delivering public functions?
No.
Extracts from two speeches during the discussion on Schedule 9:
Mark Harper (Forest of Dean, Conservative):
Several hon. Members and I have held a number of discussions with some of the Church organisations and two issues have arisen. The hon. Gentleman has already alluded to the first, which is the narrowing of the definition of an organised religion under paragraph 2(8)(a) and (b). At the moment, the Government’s position in the Employment Equality (Sexual Orientation) Regulations 2003 does not attempt to define it at such a level. The then Minister of State, Lord Sainsbury of Turville, said in response to the debate on the 2003 regulations in the House of Lords:
“When drafting Regulation 7(3), we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion.”—[Official Report, House of Lords, 17 June 2003; Vol. 649, c. 779.]
When we had such a discussion previously, there was no disagreement about those who are in a post of clergy where they are taking religious services. The issue was the width of the scope of paragraph 2(8)(b), which concerns
“promoting or explaining the doctrine of the religion…to others”.
We have had some discussion around whether it would cover those who, for example, were involved in promoting a religious organisation to the outside world and representing its case, for whom it would be significant that their public utterances about the things that were important to that religion or Church, and their behaviour, would be in line with the views of the Church. It clearly would not be convincing if they said one thing and did another.
Many Church groups think that the wording of the provision represents a narrowing that will rule out a number of the posts that are currently allowed under the 2003 regulations, which the Bill is effectively supposed to be carrying across. It would be helpful if the Minister could tell us about the translation of those regulations into the Bill, and say what was intended, so that we can see whether that has been the effect. Will she also set out what posts the Government think should be covered?
One of the things that has confused the situation is the explanatory notes, which talk specifically about a “church youth worker”. We have discussed whether the nature of the role of a church youth worker could be determined as
“promoting or explaining the doctrine of the religion…to others”
as under paragraph 2(8)(b). We have also considered whether that type of post should be included, and we will welcome the Minister’s comments about that.
The second area, which the hon. Member for Glasgow, East touched on, is the proportionality test. A number of Churches and religious organisations think that that represents a further narrowing. It concerns the condition in sub-paragraphs (5) and (6) that when the “compliance principle” or the “non-conflict principle” are engaged, both must be applied only if doing so is a proportionate means of complying with the doctrine of the religion. That proportionality test is not present in the 2003 regulations. The Churches are concerned not because they want to act disproportionately, but because putting that in means that courts and tribunals will have to be involved in addressing questions about the nature and extent of particular religious doctrines and the way in which they work.
I raise that because when regulation 7(3) of the 2003 regulations was drafted, it seemed that the Government’s policy was deliberately not to impose a proportionality test. In the case of R (Amicus) v.Secretary of State for Trade and Industry in 2004, the witness statement filed on behalf of the Secretary of State explained:
“Regulation 7(2) simply sets out criteria of general application and leaves it to the courts and tribunals to determine in individual cases if those criteria are met. This was not done in relation to employment for purposes of an organised religion in regulation 7(3), because the Government was concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion, and to what extent those requirements, and by extension, the doctrine or convictions giving rise to them, could be said to be reasonable or proportionate. The Government was engaged in striking a delicate balance”—
the Committee acknowledges that it is a balance—
“between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion. The Government took the view that it is not appropriate for courts or tribunals to make such judgments, and that the balance should be identified in the Regulations themselves.”
It would be helpful if the Minister commented on the judgment at that time, why the Government in effect have introduced the proportionality test and whether they recognise that it carries that risk—that it opens up to courts and tribunals the test of having to make judgments about individual religions. The hon. Member for Glasgow, East made a very good point when he said that those judgments are best left to the religions themselves, rather than being taken outside the religion and given to the industrial tribunal or the court.
Those are the two issues on which I wanted to probe the Minister and invite her to set them out clearly for the Committee, so that we can see whether the Bill does what the Government’s stated intentions are.
Vera Baird (Solicitor General, Attorney General’s Office; Redcar, Labour):
The effect of amendment 189 would be to exclude from that definition those whose employment “wholly” as opposed to “mainly” involves duties between one of the definition’s two limbs. The existing exceptions about employment
“for the purposes of an organised religion”
do not contain the definition of what that expression means. However, contrary to what has been suggested, the new definition does not narrow the scope of the existing exceptions.
There has been some confusion about what is meant by
“for the purposes of an organised religion”,
and we have therefore included a definition of the term to clear up misunderstandings, to save courts and tribunals having to go into areas of potential religious controversy and to reduce the risk of the exception being misused. The definition is designed to make it clear that the exception applies to a very narrow range of employment, such as ministers of religion plus a small number of posts outside the clergy, including those that exist to promote and represent religion. I have found examples of that difficult to put forward. That was again what Lord Sainsbury had in mind when he talked about the existing exemption under regulation 7(3) of the Employment Equality (Sexual Relations) Regulations 2003. What he said was entirely consistent with the Amicus case, which was that regulation 7(3) was very narrow and affords an exception only in very limited circumstances.
The Public Bill Committee that held hearings reported earlier and also here, is now engaged in a clause-by-clause review of the text of the bill. The easiest way to follow their deliberations is via this page, or alternatively via TheyWorkForYou (which runs a little behind in its updating, but is more nicely formatted). To keep up with the amendments, you need to check that page.
The Joint Committee on Human Rights has announced that it will also hold hearings about this bill. There is a Press Notice available here, which says:
The Joint Committee on Human Rights is considering the compatibility of the Equality Bill with the UK’s human rights obligations.
The Committee has decided to focus on a number of matters in the Equality Bill which it considers are capable of raising significant human rights issues. Further details of the Committee’s concerns are contained in its letter of 2 June 2009 to the Solicitor General Vera Baird QC MP:
http://www.parliament.uk/documents/upload/Baird_Equality020609.pdf
During its recent review of its working practices, the Committee agreed that it would be helpful to engage relevant stakeholders in its legislative scrutiny work. Submissions of no more than 1,500 words on the human rights compatibility of this Bill are therefore requested by 17 June 2009…
Separately, the Government Equalities Office has launched a consultation on specific public sector equality duties. As explained on this page:
On Thursday 11th June 2009, a consultation document setting out policy proposals for the specific public sector equality duties was published. The closing date for comments is 30 September 2009. Please click below to view the document:
There is a lengthy press release which gives more background to this.
Updated
A comment article, written by me, appears at Cif belief.
See Equality, the church and discrimination. (They changed the title…)
“Unjust discrimination is fundamentally wrong.” So say the Roman Catholic bishops of England and Wales in evidence to parliament on the equality bill. But doesn’t this terminology imply there might be another category of “just discrimination” which is slightly less awful, or even in some circumstances righteous?
Update
A news report, also written by me, appears in this week’s Church Times. This was filed on Wednesday morning, before the publication of the full transcripts of the Tuesday hearings.
See Churches argue for job discrimination.
REPRESENTATIVES of both the Church of England and the Roman Catholic Church told the House of Commons on Tuesday that their existing right to discriminate in cases of employment, on the basis of factors other than religion, would be unreasonably limited by the new Equality Bill. A scrutiny committee was taking oral and written evidence this week, before starting its clause-by-clause examination of the Bill, which is scheduled for completion in early July…
(Note that the last part of the article is from another journalist).
The House of Commons committee continued its hearings on the Equality Bill yesterday.
The first session of the day (third session in total so far) heard first from the Church of England and the Roman Catholic Church among others. You can read a complete transcript of the proceedings, starting at this page. This part of the session continues for four pages.
Update More user-friendly link to the transcript from TheyWorkForYou here.
The session continued with a second group of witnesses, from business and trade union organisations.
Later in the day, a further session was held, which can be followed from here. And the user-friendly link from TheyWorkForYou is here.
I will have my own comments in a while about the first part of the first session of the day, at which I was present.
There was no written statement from the Church of England. The written statement from the Roman Catholic bishops has been linked previously, and is here.
First, there is a Research Paper from the House of Commons Library concerning the bill, available as a PDF, see Research Paper 09/42.
Committee hearings have begun, and Hansard reports can be found linked from this page. A more user-friendly version can be found here at TheyWorkForYou.
Written evidence has been submitted by various organisations, all listed there.
Among them are these:
Catholic Bishops’ Conference of England and Wales
Discrimination Law Association
Proposed amendments to the bill can be found here (click on Show+ Amendment Papers and Proceedings).
Ekklesia published on 2 June a study by Savi Hensman The Equality Bill 2008-9 and church responses to it.
Updated again Saturday
Charity Finance reports Charity Tribunal dismisses Catholic adoption case
The Charity Tribunal has rejected the latest attempt by a catholic adoption charity to circumnavigate rules preventing it from discriminating against homosexual couples seeking to adopt children.
Catholic Care (Diocese of Leeds) had sought to take advantage of an exemption in the Equality Act (Sexual Orientation) Regulations 2007, which suggests that discrimination can occur if it is in pursuit of charitable objectives.
In its preliminary judgment in March, the Tribunal had ruled the exemption could only apply if the charity’s activities were not made unlawful by other provisions.
But at the final hearing last month, the charity was unable to demonstrate that it could operate in such a way.
See also Third Sector Online reports (registration required)
Children’s charity Catholic Care (Diocese of Leeds) has lost its appeal to the Charity Tribunal against the Charity Commission’s refusal to allow it to change its objects to allow its adoption service to discriminate against homosexual parents.
The charity wanted to take advantage of an exemption in the Equality Act (Sexual Orientation) Regulations 2007 that permits charities to discriminate on the grounds of “the provisions of a charitable instrument”, such as a governing document.
But in its first ever final judgement, the tribunal’s panel of three legal members, led by president Alison McKenna, concluded that Catholic Care would infringe other provisions in the regulations if it discriminated against homosexual parents and would therefore be operating unlawfully…
Two earlier reports from the same source:
Allow us to exclude gay people, Catholic adoption charity tells Charity Tribunal.
Adoption charities must justify equality law exemption
The decisions of the Charities Commission and the Charities Tribunal are all available online:
Charities Commission:
final decision (PDF) and summary here
Charities Tribunal: (all PDFs)
Directions Order with Ruling (7 January 2009)
Ruling on Preliminary Question (13 March 2009)
Catholic Care (Diocese of Leeds) v The Charity Commission for England and Wales decision (1 June 2009)
Other media reports:
Daily Mail Steve Doughty Catholic ban on adoption by same-sex couples is ruled illegal
Telegraph Catholic charities breaking law on homosexual adoption
Neil Addison writes at Religion Law Blog about this in Catholic Adoption Agencies lose case:
…What the agencies were trying to do was to change their objects so as to add the following
“The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church”
They argued that this would enable them to operate because of the exemption for Charities under reg 18 of the Sexual Orientation Regulations 2007 which say
“18.—(1) Nothing in these Regulations shall make it unlawful for a person to provide benefits only to persons of a particular sexual orientation, if—
(a) he acts in pursuance of a charitable instrument, and
(b) the restriction of benefits to persons of that sexual orientation is imposed by reason of or on the grounds of the provisions of the charitable instrument”
Mr Addison goes on to explain where he disagrees with the tribunal, why even if the agency had won it would have been a pyrrhic victory, and he also offers an alternative solution that he had recommended, but which was it seems rejected.
The Catholic Herald has reported on this, Judgment seals fate of adoption agencies. This includes:
However, the Office of the Scottish Charity Regulator allowed St Margaret’s Adoption and Child Care of the Archdiocese of Glasgow to change its charitable objects to continue its policy of assessing only heterosexual married couples and single people as adopters.
That has prompted a complaint from the National Secular Society, see Scottish Charity Regulator lambasted for caving in to Catholic Charity over gay adoption.
See also SNP and Catholic Church’s secret plan to sidestep legislation on gay adoptions in the Glasgow Sunday Herald.
Ekklesia has reported on the English case, and refers to the views of the LGCM RC Caucus, see Gay Catholics welcome rulings against adoption agency discrimination.
The publication of the proceedings before the Charities Tribunal has publicised the actual drafting of the proposed charitable objects which the Leeds and Birmingham agencies wished to adopt.
Both draft instruments relied upon the following paragraph to gain the desired exemption: “The Society shall provide adoption services only to heterosexuals and only in accordance with the tenets of the Roman Catholic church”.
The Roman Catholic Caucus of LGCM points out that, contrary to the general press comment about the appeals by these adoption agencies, the agencies were not seeking permission to place children only with married couples. They were seeking to exclude all lesbian, gay and bisexual people from the ambit of their services, including those who choose to live their lives celibately in strict accordance with Catholic church teaching.
“This proposed object is blatantly contrary to Catholic church teaching,” comments the Caucus.
The Caucus says it also became clear in various discussions before the Charities Tribunal that the “adoption services” referred to include services to children who are to be placed or have been placed for adoption. The proposed wording would therefore have required the agency to ascertain the sexual orientation of any child who was placed for adoption as a condition of providing services to that child.
As the “adoption services” described include support after the child has been placed, this would also involve withdrawing after-care services to a family in which the adopted child comes out after the adoption has taken place. The LGCM Catholic Caucus says it considers that “most Catholics will find this proposal both offensive and contrary to the values of the Roman Catholic Church.”
The full text of the statement from the LGCM RC Caucus is available at Caucus reacts to Adoption Ruling.
Regulation 7(3) in the Employment Equality (Sexual Orientation) Regulations 2003 permits religious organisations, but nobody else, to claim an “exception for genuine occupational requirement” related to sexual orientation as distinct from a requirement to be of a particular sexual orientation. The latter exception is provided in Regulation 7(2), and may be claimed by any employer.
The Equality Bill now before Parliament proposes to alter this regulation, among others. In particular a specific definition of “the purposes of organised religion” has been added.
The adoption of the regulation in 2003 was not without controversy. I wrote extensively about this at the time and will review that history here now, for the benefit of those who were not following Thinking Anglicans six years ago.
Regulation 7(3) arose directly from a request made by the Church of England.
Here is the full text of the 23 January 2003 submission made by the Archbishops’ Council to the DTI consultation “The Way Ahead”. The crucial section reads:
…21. This does not mean that the Church challenges the principle that homosexuals should have full equality and protection before the law. On the contrary, we welcome the steps taken over recent years to combat all prejudice, to repudiate homophobic violence and to create new legal safeguards and protections. The new regulations are an important part of that process. Nevertheless, it is crucial that they do not encroach on the freedom which all religious organisations must have to set and enforce their own conduct rules in relation to those who work for and represent them.
22. What those conduct rules should be is a matter of continuing debate within the Church of England and indeed within many other Churches. The point is simply that however those internal debates are resolved, Churches and other faith-based organisations must not find themselves in a position where the law of the land is preventing them from conscientiously applying their own sincerely held doctrines and beliefs on moral issues.
23. The need to safeguard religious doctrine, belief and susceptibilities was, of course, recognised as long ago as 1975 by Section 19 of the Sex Discrimination Act. A corresponding provision was included by the Government in the Gender Reassignment Regulations of 1999. Our officials have already suggested to yours that the solution to our difficulties could be provided by a provision directly modelled on the earlier precedents.
24. We strongly urge the Government therefore to insert in part 5 of the Regulations the following provision:
“Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers.”
That proposal was based on what was at the time the wording of Section 19 of the Sex Discrimination Act.
The government did not accept this wording unchanged but did issue a revised draft on 7 May which included 7(3) for the first time. See here for a comparison of the two drafts. The first was what had gone out to consultation in October 2002, the second was issued on 7 May. There had been no prior notice of the changes being made to Clause 7. The text of the explanatory notes is here.
On 8 May a letter was sent by William Fittall to members of the Archbishops’ 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. Here is the full text of the letter. It included this:
…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.
On 9 June William Fittall wrote to the Joint Committee on Statutory Instruments ( JCSI), which scrutinises such documents on behalf of both houses of Parliament. The full text of his letter is reported here. He wrote:
…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.
On Friday 14 June the JCSI reported on these regulations. They made specific criticisms of the Sexual Orientation regulations. They expressed serious doubts that this clause was lawful under the European Communities Act 1992, saying: “the body of the Directive affords no special position to religious organisations in the context of sexual