Joint Committee on Statutory Instruments Minutes of Evidence

Examination of Witnesses (Questions 1-19)

Draft Employment Equality (Religion or Belief) Regulations 2003 and draft Employment Equality (Sexual Orientation) Regulations 2003

Tuesday 3 June 2003

Ms Ros McCarthy-Ward, Ms Cathy Rees, Mr Nick Magyar, and Mr David Thorneloe

  Q1  Chairman: I would like to welcome you all to this Joint Committee on Statutory Instruments this afternoon. We are a Committee of both Houses of Parliament. We do, on rare occasions, ask for oral evidence, which we have done this afternoon, we have asked witnesses to attend. I am going to make a short opening statement which, for greater accuracy, I will read and then I will ask the witnesses to identify themselves and whether they have any opening statements. After that we will proceed with questions and at the end I shall ask everybody who is not a Member of the Committee to withdraw so we can deliberate on what the witnesses have said to us. We, the Joint Committee, are here this afternoon to consider the two sets of Employment Equality Regulations which are before us. The Committee thinks it is important that it has a full understanding of the powers the Government intends to exercise in making these regulations. We have, therefore, asked departmental officials to appear before us this afternoon to explain some of the aspects of the draft regulations and to elaborate on the memoranda which the Department has supplied in response to our earlier questions, which was obviously in previous sessions. This Committee has a limited remit. It can only report its findings on certain technical aspects of Statutory Instruments to both Houses. It is not for this Committee to consider the policy behind the Instruments before us today, that is a matter for the Government. The matter to be addressed when the Instruments are debated in both Houses is the policy. Here we are this afternoon and we have our witnesses in the room. Before I introduce them I would just like to make it clear that the two persons on my right and left are obviously not Members of the Committee, they are Counsel to the Chairman of Committees of the House of Lords on my right and the Commons Clerk of the Committee on my left. Would you like to identify yourselves, please, from left to right as I look at you.

  Ms Rees: I am Cathy Rees. I work for the DTI on the religion and belief regulations.

  Ms McCarthy-Ward: I am Ros McCarthy-Ward. I am head of the branch that has policy responsibility for the regulations.

  Mr Magyar: I am Nick Magyar. I am head of the legal branch with responsibility for drafting the regulations.

  Mr Thorneloe: I am David Thorneloe, drafting lawyer working on the regulations.

  Q2  Chairman: Thank you very much for introducing yourselves. Do you have any introductory statements you wish to make?

  Ms McCarthy-Ward: No, I think we have provided you with memoranda.

  Q3  Chairman: We have a list of questions which we think are appropriate and then there may be some more informal questions afterwards. May I start by asking you the following: the words "for the purposes of an organised religion" in regulation 7(3) of the sexual discrimination regulations are taken from section 19 of the Sex Discrimination Act 1975. How are those words commonly understood in that context? Secondly, while you are pondering that question, is it intended that the words "for the purposes of an organised religion", as used in regulation 7(3), should be understood in the same way as they are in section 19 of the Sex Discrimination Act? If you would like me to repeat the question I will gladly do so.

  Mr Magyar: No, thank you.

  Q4  Chairman: I think you will need to speak up too, this room does not have the best acoustics.

  Mr Magyar: As the Committee is aware, the term "organised religion" is not a new one in legislation. You are quite right, it is taken from the Sex Discrimination Act, section 19.

  Q5  Earl Russell: I am sorry, could you speak up a little, please.

  Mr Magyar: Sorry. As the Committee has realised, the term "organised religion" is not a new one in legislation, it is taken from section 19 of the Sex Discrimination Act. We are not aware of any case law on what constitutes an organised religion. In practice the term does not appear to have caused any misunderstandings but, as I say, as far as we are aware it has not been the subject of any case law. Whether something is an organised religion ultimately will be a question of fact for the court or tribunal. We do not expect that it would prove a more difficult question than other questions of fact regularly faced by courts. In practice, looking at how the courts are likely to approach this, we anticipate that in general it should be reasonably clear whether or not employment is for purposes of an organised religion. We think that would involve consideration of who or what the employer is and what it does and consideration of the role of the employee and the functions of his or her post. Generally speaking, we would be thinking that an organised religion is something like a church, a mosque, a temple, something of that nature, but it could be wider than that—ultimately, it is a question of fact for the court or tribunal.

  Q6  Chairman: So the main religions would be covered but it would be a matter for the courts to decide on religions which are not necessarily household names?

  Mr Magyar: Yes, I think that is correct.

Chairman: Does any colleague wish to pick up on those points so far? Thank you very much for that. I will ask Mr Donaldson if he would like to ask the next question.

  Q7  Mr Donaldson: Referring back to Article 4.1 of the EC Directive, what do you think the terms "genuine and determining" mean in that Article?

  Mr Magyar: We think the word "genuine" would carry its natural meaning, so a requirement would be a genuine requirement for a job having regard to the nature or context of the work, not one which would be created at the whim of the employer in order to exclude persons of a particular orientation. We feel the word "determining" denotes that the requirement must be crucial or decisive to the post in question, not merely one of several general requirements.

  Q8  Mr Donaldson: Can you explain how discrimination on the basis of regulation 7(3) can be limited to "genuine and determining" occupational requirements?

  Mr Magyar: The words "genuine and determining" are implicit, we feel, in the strict criteria laid down in regulation 7(3). They are not spelled out in regulation 7(3) because to do so would effectively require organised religions to overcome the same hurdle twice, but we expanded on the point in more detail in the memorandum that we provided to the Joint Committee on 27 May.

Mr Donaldson: Thank you.

  Q9  Andrew Bennett: Can you just give us a couple of practical examples of where discrimination would and would not be involved in that question you have just answered?

  Mr Magyar: Do you mean regulation 7(3) of the sexual orientation regulations?

  Q10  Andrew Bennett: Yes. You have just described it in these terms, can you now put it into a more practical example of how you think one group would be covered by the regulation and another group might be exempt from the regulation?

  Mr Magyar: We think that the obvious example of one that would be covered would be clergy or a high ranking official in a church body. We think that an example of a case that would not be within that would be, for example, a nurse in a care home.

  Mr Thorneloe: Yes, on the basis that if it were a care home perhaps that had a religious ethos or was run on religious principles that would nevertheless probably not be employment for purposes of an organised religion and would not have a sufficiently close relationship to the religion in the nature and context of the work so as to meet the criteria of regulation 7(3).

  Q11  Andrew Bennett: You made the comment about a high ranking official, how low down do you come before you are caught or you are not caught?

  Mr Magyar: Again, I think that ultimately has to be a question of fact for the tribunal or court considering the matter. It is extremely difficult to try and give examples in the abstract, particularly when one is not aware of the particular organisation, one is simply talking about an hypothetical organisation.

  Q12  Andrew Bennett: Surely it should be simple for a member of the general public to read the regulation and to understand the regulation as it might apply to them.

  Mr Magyar: We feel that we have drafted it in as clear and as succinct a way as possible and in conformity with the terms of Article 4. At the end of the day I think one has to recognise that Article 4 is in some respects somewhat unclear, that there will be cases that could fall either side of the dividing line and ultimately I do not think one can spell out those cases in legislation, one has to trust to the good sense of the courts and the tribunals that have to consider the matter. Inevitably they would have regard to the Directive in approaching the issue, but at the end of the day we feel that the regulation is as clear as it is possible to be.

  Q13  Earl Russell: There are one or two precedents on this which perhaps might be helpful. There are EOC and Employment Tribunal precedents in this country. It has been ruled that a job fitting women's bras is one where being a woman is a genuine and determining occupational requirement, and I think one can understand that well enough. There was also a case where a man was offered a job under the Jobseeker's Act pulling pints in the Cardiff Conservative Club and he refused it on the ground that he was a Labour voter and this was ruled not to be a determining occupational requirement. Where do you draw the line between these two types of case? How does it apply to these regulations?

  Mr Magyar: I think it is actually very difficult, as I say, to draw the line in the abstract, particularly in relation to sexual orientation and religion or belief where I think we are in a slightly different ball game than sex discrimination. I think one simply has to look at the particular facts of any individual case and ultimately, as I say, it will be for the court or tribunal to determine the issue.

  Q14  Earl Russell: There are two pieces of wording here that I wanted to ask what parallels there are to. 7(3)(ii): ". . . so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers . . ." A lot of things interfere with people's convictions, where else has this allowance been made in equivalent regulations?

  Mr Magyar: I am sorry, I missed the last part of that.

  Q15  Earl Russell: Where else has an equivalent allowance been made in regulations for something which conflicted with someone's strongly held convictions? Where else has this been held as sufficient ground for exemption?

  Mr Magyar: Section 19 of the Sex Discrimination Act has a similar formulation but we are basing our regulations squarely on Article 4.1. The point here is it is not merely so as to avoid conflicting with the strongly held religious convictions of a significant number of followers that is sufficient, it is because of the nature of the employment and the context in which it is carried out. One also needs to have regard to the first criterion where the employment is also for purposes of an organised religion. We are not talking about any employment, we are talking about a specifically narrowly drawn category of employment and even then, because of the nature of the employment and the context in which it is carried out, the requirement must be necessary ". . . so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers . . ."

  Q16  Earl Russell: There we come back again to the question of the exemption for a person pulling pints at the Conservative Club. What is and what is not "for purposes of a religion"? Would pulling pints in a bar be for purposes of a religion or would cleaning its windows be for purposes of a religion?

  Mr Magyar: In my view, I think it would be a very difficult argument to sustain that such employment would be for purposes of an organised religion, but even if one were to overcome that particular hurdle, and I think it is a difficult one, it would be difficult to say that the nature of the employment and the context in which it is carried out would make it necessary so as to avoid conflicting with the religious convictions of the followers of the religion. Ultimately, obviously, that is my view on that but it is not to say that that argument will not be run in a court or tribunal but my feeling is it is unlikely to be sustained.

  Q17  Earl Russell: Why then is this argument allowed for a religion and not for Cardiff Conservative Club?

  Mr Magyar: As I said at the outset, I think that with religious discrimination we are in a slightly different ball game from sex discrimination and also we are talking about the strictly drawn criteria that we have here based on Article 4.1 of the Directive and that gives a different context.

  Q18  Earl Russell: Which phrase in 4.1 of the Directive are you relying on there?

  Mr Magyar: We are relying on 4.1.

  Q19  Earl Russell: Which part of 4.1? I have it in front of me here.

  Mr Magyar: It is the whole thing. Would you like me to read it out for the benefit of the Committee?

previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 13 June 2003