Examination of Witnesses (Questions 20-39)|
Tuesday 3 June 2003
Ms Ros McCarthy-Ward,
Ms Cathy Rees, Mr Nick Magyar, and Mr David Thorneloe
Q20 Earl Russell: Yes, I would. I
would like to know which words you are relying on.
Mr Magyar: Article 4.1 says: "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", which obviously
would include sexual orientation, "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".
Chairman: May I just ask Lord Lea to come in at this
Q21 Lord Lea of Crondall: Under draft
regulation 7(3)(b)(i) a discriminatory requirement may lawfully
be applied so as to comply with the doctrines of the religion,
regardless of the nature of the employment or the context in which
it is carried out. How is this justified by Article 4.1 of the
Directive, which requires that a characteristic should be related
to the nature of the particular activities concerned or the context
in which they are carried out?
Mr Magyar: Where religious doctrine
requires a post to be filled by persons of a particular orientation
we believe it will do so because of the nature of the post or
the context in which it is carried out. We are not aware of any
cases in which religious doctrine requires a post to be filled
by persons of a particular orientation, but religions and religious
doctrines change over time so we felt it was important to include
this. The essential point is that where religious doctrine requires
a post to be filled by persons of a particular orientation we
believe it will do so because of the nature of the post or the
context in which it is carried out, not merely because of discriminatory
motives not attributable to the post or the context.
Q22 Mr Donaldson: Just exploring
this point a bit further on where you draw the line. The Bible,
which of course is central to Christian churches, teaches that
homosexuality is a sinful practice. If a church in London wishes
to employ someone to clean its windows, is that a genuine and
determining factor in terms of employment to that particular post?
If that same church wished to employ a Christian counsellor to
counsel, for example, someone who was the victim of sexual abuse,
in those circumstances would it be a genuine and determining requirement?
Mr Magyar: I think with the cleaner
of the windows the argument, as I think I have indicated, would
be difficult to sustain. I cannot give a categoric answer here,
and I am sure you would not expect me to be able to do so, but
I would have thought that for that sort of post it would be very
difficult to sustain that argument. With different posts there
may be the possibility of running the argument. In the other post
that you mentioned, it is possible. Again, it is a question of
fact ultimately for a court or tribunal. Certainly with the cleaner
I think there would be great difficulty in sustaining the argument.
Q23 Earl Russell: With the cleaner
we are in an area of considerable uncertainty, especially since
religions may claim to be the supreme judge of what is compatible
with their ethos. There could be room for a good deal of litigation
Mr Magyar: I think I would have
to accept that I cannot give a categoric assurance to this Committee
that an argument will not be run in relation to a cleaner. What
we have tried to do with regulation 7(3) is draw the criteria
in such a strict way that there will be a number of hurdles for
any employer trying to sustain such an argument to actually convince
a court or tribunal that to be a cleaner they had to hold a particular
orientation and that that was a genuine and determining occupational
requirement. As I say, I cannot give a categoric assurance that
a case of this nature will not be run, it will not give rise to
litigation, but we have tried to draw the criteria in a way that
gives a clear indication to courts and tribunals that this is
a strict exemption.
Chairman: Thank you very much. Before I call Mr White,
can I just say to everybody in the room that I think I can detect
a faint electronic signal of some kind emitting a sound from somebody
in this room. If anybody has got a beeper or a phone that is not
switched off, would they check that it is.
Q24 Brian White: I am slightly confused
because I would have thought that regulation 7(2) would cover
everything in Article 4.1 and Article 4.1 of the Directive requires
that the discrimination requirement is proportionate and that
is the basis of your argument. If you look at regulation 7(3)(b)(ii)
it allows the "strongly held" religious convictions
of a "significant number" of a religion's followers
to be given precedence when determining whether the discriminatory
requirement can be applied. Why is it considered that this will
always be proportionate?
Mr Magyar: Because of the way
that the provision is structured and the other hurdles that have
to be overcome. Even in regulation 7(3)(b)(ii) it is not simply
that there are strongly held religious convictions, it is because
of the nature of the employment and the context in which it is
carried out. Merely having strongly held religious convictions
of itself would not be sufficient. The object there is to ensure
that where it is merely a prejudice, if you like, on the part
of certain followers, that of itself will not be sufficient.
Q25 Brian White: So "proportionate"
refers to the degree of discrimination, not the grounds for it?
Mr Magyar: We think that the provision
taken as a whole is proportionate, that if you can rely on this
provision by definition you are squarely within 4.1 and that satisfies
the test of proportionality.
Q26 Brian White: If I am an organisation
trying to follow this regulation, how am I to know that I am being
proportionate or not?
Mr Magyar: I think that is a problem
that many organisations in many fields experience from one day
to the next given the human rights legislation which often requires
action to be proportionate. The answer that I would give is here
we have actually set out the criteria and if they are met then
that is proportionate, so the organisation relying on this does
not have any additional hurdle about proportionality. If they
are within this provision they have acted in a proportionate and
legitimate way. In actual fact, this provision should help on
the proportionality angle rather than present an additional problem.
Q27 Earl Russell: Would it be possible
to read (b)(ii) as saying that something is proportionate if it
conflicts with the strongly held religious convictions of those
Mr Magyar: I do not think you
can just say it is proportionate if it conflicts, I think you
have to look at the whole provision.
Q28 Earl Russell: Which parts of
the whole provision do you want to look at?
Mr Magyar: I think we have set
out a number of criteria which, if met, show that the application
of the requirement is proportionate. I do not think that you can
extract from the provision that we have drafted one sentence and
say "Oh well, does that mean, if X, that would be proportionate?"
I think one has to look at the provision as a whole.
Q29 Andrew Bennett: Not being a lawyer,
can you explain simply for me the difference between 7(2) and
Mr Magyar: 7(2) is of general
application. It applies where ". . . having regard to the
nature of the employment or the context in which it is carried
out(a) being of a particular sexual orientation is a genuine
and determining occupational requirement; (b) it is proportionate
to apply that requirement in the particular case; and (c) either(i)
the person to whom that requirement is applied does not meet it,
or (ii) the employer is not satisfied, and in all the circumstances
it is reasonable for him not to be satisfied, that that person
meets it . . ." That is a provision of general application.
Where 7(3) is distinct is that it only applies where the employment
is for purposes of an organised religion. 7(3) is tailored, if
you like, to the employment in an organised religion. That is
not to say that there might not be cases where there could be
some overlap between the two provisions but clearly we have drafted
them with a view to one being of general application and one to
cover a specific case.
Q30 Andrew Bennett: How significant
do you think the difference between them is?
Mr Magyar: I think that the religious
organisations would tend to rely on 7(3) simply because it is
employment "for purposes of an organised religion".
I think that the two provisions are covering slightly different
situations. 7(3) may be slightly broader but both
Q31 Andrew Bennett: Only slightly
Mr Magyar: I would say so. The
criteria are drafted strictly. I do not think that tribunals and
courts are going to construe this in a way that some fear, which
is that as long as someone turns up and says they are a religion
that they can then discriminate in whatever way they feel. 7(3)
is strictly drafted, it is slightly broader than 7(2), and both,
we would say, are plainly within Article 4.1 but 7(2) is for any
employer, 7(3) is confined to organised religions.
Q32 Andrew Bennett: What about groups
within a religion who may have divergent views on the matter?
How is that going to be applied?
Mr Magyar: That would come down
to 7(3)(b)(ii) but one would look at the nature of the employment
and the context in which it is carried out as to whether those
requirements would be necessary "so as to avoid conflicting
with the strongly held religious convictions of a significant
number of . . ."
Q33 Andrew Bennett: Of all the members
or a significant minority or a significant majority?
Mr Magyar: A significant number.
Q34 Andrew Bennett: So are you actually
giving a veto to one particular group who might say, "We
do not like this particular behaviour," even though the religion
as a whole might have reached a different decision?
Mr Magyar: No, because the employer
would still have to show that the requirement was because of the
nature of the employment and the context in which it is carried
out necessary so as to avoid conflicting with the strongly held
religious convictions of a significant number of the religion's
followers. It would not be for one or two people to say, "We
have these strongly held religious views and therefore we are
able to rely on 7(3)."
Q35 Mr Donaldson: Is it not the case
that you cannot talk of a religion as a corporate body as an employer
because quite often religions and faiths are organised in separate
congregations and quite often the congregation is the employer
in law, and therefore is it not the case that this is required
as you have framed it so that it is clear that you are dealing
with the employer in law and that may be an individual congregations,
albeit part of a wider religious grouping?
Mr Magyar: Yes, I think I would
accept that that is correct. That is our understanding, if the
congregation is the employer in law.
Q36 Huw Irranca-Davies: Following
the decision to insert Regulation 7(3) I understand the Department
discussed the scope of the exception with "a small number
of representatives from churches", if that is correct, and
yet the Department does concede in its memorandum that Regulation
7(3) will have an "important but strictly limited impact
on only a small number of persons who are employed for the purposes
of an organised religion." My question is very straightforward.
Conceding that pointthat it is going to have a substantial
effect on a small number of personswhy was the scope of
that amendment not discussed with that small number of persons?
Ms McCarthy-Ward: Perhaps I had
better take up the case there. We have had an enormous amount
of consultation on these Regulations as a whole. We have had three
public consultations, and almost 4,000 responses. We have also
held informal discussions and been out to talk to people and in
various different ways gathered an enormous amount of information
about the views of a very wide number of people and organisations,
so we were aware of the representations that the gay and lesbian
groups have made on this issue. The churches, in relation to the
draft Regulations on which we consulted last, pointed out that
there was an omission which was causing them difficulty and, after
much consideration and discussion with them to work out what the
Directive would enable us to do and where the Regulations should
cover it, we decided that the Regulation should be changed to
take account of that. In making that change we took account of
all the views that had been expressed over the whole period of
Mr Magyar: If I could just add,
the real reason for the meetings was to find out precisely what
the problem was for the churches. It has never been part of the
Government's policy to interfere with religious doctrine or the
genuinely and strongly held views of religious followers. The
purpose of the meetings was to find out precisely what the problems
were for the churches so as to enable us to draft a provision
that addressed the problem, but I think it would be fair to say
that the churches still felt that we had not gone anywhere near
far enough in the provision that we drafted. We however felt that
this would address the specific problems that they had raised
and that is why we were talking to them.
Q37 Huw Irranca-Davies: Just to probe
a little further, whilst it may have been possible to elicit the
views of the small number of people that may be affected, what
you are clearly saying is it would not have been appropriate anyway
within the remit of what you were trying to ascertain for 7(3).
Mr Magyar: Precisely.
Ms McCarthy-Ward: I think we felt
that we had already obtained the views of the people likely to
be affected on the gay and lesbian side, and it was, as Nick said,
finding out the precise detail of where the problem lay that we
needed to explore.
Q38 Chris Mole: Can I take it then
that the draft Regulations on which you consulted at an earlier
stage were viewed as being consistent with Article 4.1 of the
EU Directive and that you would therefore feel that the changes
made have not in any way affected compliance with that Article?
Mr Magyar: Yes, the changes we
have made have not affected whether or not we are within 4.1.,
we are still squarely within 4.1.
Q39 Andrew Bennett: You have all
this consultation, you know it is going to be pretty controversial
and then you smuggle the Regulations out in photocopied form;
why is that?
Ms Rees: I think I ought to answer
that one. I think that reflects how seriously we were taking the
consultation responses we had and the great amount of time we
spent thinking about it and then getting collective agreement
from Ministers. I have seen the word "smuggled" used
in a number of newspaper articles as well and I very much regret
that suggestion. I have to say to try and manage the risk we sent
out copies of the draft Regulations and explanatory memoranda
to all the key stakeholders especially those who would have particularly
strong views about 7(3) to make sure that they got it on the day
we laid the draft regulations before Parliament. But I do regret
the delay in the process and I have to say we are pursuing very
actively getting the draft regulations made available from HMSO.