Back in June, I wrote an article for the Church Times, Equality Law will affect church appointments. This is a more detailed look at the same subject, with particular reference to the draft legislation on women bishops that is about to be referred to the dioceses of the Church of England.
That draft measure, GS 1708A as amended by synod in July, contains the following clause:
7 Equality Act exceptions
(1) Section 50(1), (2), (3), (6) and (7) of the Equality Act 2010 (2010 c. 15) (“the Equality Act”) do not apply so far as they relate to sex or religion or belief, in relation to —
(a) any arrangements contained in a scheme made by the bishop of a diocese under section 2,
(b) any request made by a parochial church council under section 3(1) or (3),
(c) any arrangements set out in a notice sent to the secretary of a parochial church council by the bishop of a diocese under section 3(8),
(d) any action taken in exercising functions relating to the appointment of a priest in order to take account of a request made by a parochial church council under section 3(3), and
(e) any provision in a Code of Practice made under section 5.
(2) Subsection (1) is without prejudice to Schedule 9 to the Equality Act
Section 50 of the Equality Act 2010 deals with the particular topic of Public offices: appointments, etc. Under the Equality Act, a Public office is defined as:
a) an office or post, appointment to which is made by a member of the executive;
(b) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, a member of the executive;
(c) an office or post, appointment to which is made on the recommendation of, or subject to the approval of, the House of Commons, the House of Lords, the National Assembly for Wales or the Scottish Parliament.
Clearly, this definition encompasses all Crown appointments, which within the Church of England includes among many others all appointments to bishoprics.
Section 50 goes on to specify the various ways in which discrimination is prohibited in relation to such appointments. For example:
(a) in the arrangements A makes for deciding to whom to offer the appointment;
(b) as to the terms on which A offers B the appointment;
(c) by not offering B the appointment.
It is self-evident that several provisions in the draft legislation are, and are intended to be, discriminatory against women appointees. See, for example, the references to a “male bishop” in the text. Unless a clause along the lines of Clause 7 is included in the draft measure, there will be a clear conflict with Clause 50 of the Act. It is worth noting, perhaps, that this requirement is entirely separate from, and in no way impinges on, the various exemptions for religious organisations which are enumerated in Schedule 9 of the Act.
It is also worth noting that the Second Church Estates Commissioner, Tony Baldry MP, and the former MP, Robert Key, both issued warnings to synod during the debate that even with, or perhaps because of, Clause 7, the draft measure might face opposition in Parliament. See my earlier report women bishops and equality legislation.