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?
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.