Examination of Witnesses (Questions 40-56)|
Tuesday 3 June 2003
Ms Ros McCarthy-Ward,
Ms Cathy Rees, Mr Nick Magyar, and Mr David Thorneloe
Q40 Andrew Bennett: When do you expect
them to be available on the website?
Ms Rees: They are available on the DTI
website now and we expect them to be on the HMSO website next
Q41 Andrew Bennett: Why has it taken
Ms Rees: It has taken some time
but I do not want to blame HMSO. I have to hold my hand up squarely
to take some of the responsibility. I think part of it has been
these are hefty documents, you have got them yourselves, each
is 40 pages and the amount of proof-reading and detailed work
through them is a significant undertaking and we have spent time
getting that absolutely spot right because it is important.
Q42 Andrew Bennett: Is it not important
that the documents are available to people that are not involved
in pressure groups that have got a particular interest in the
Ms Rees: We sent out over 50 copies,
as I say, on the day. We have got hotline numbers published in
all the consultation documents. We have a lot of contacts, people
have been phoning us up and I think we have to say the amount
of press coverage there has been has also alerted people to this,
and we know the organisations we sent them to cascaded them widely.
We think that the Regulations are out there for people to actually
see and consider.
Q43 Earl Russell: One follow-up question
to Mr Donaldson's important question about the congregation as
employer. The answer to that was if fact yes there are circumstances
where the congregation is the employer. Does this mean there are
circumstances in which it is legal to employ people at the Regent's
Park Mosque but it is not legal to employ them at the Finsbury
Mr Magyar: Well, I suppose if
the nature and context of the work differs at the two mosques,
the answer is yes. Ultimately, again, the matter would have to
be adjudicated upon by a court or tribunal and it would be dependent
upon the particular facts. I cannot answer in the abstract very
easily. I think it will turn on the nature of the particular employment
and the context in which it is carried out.
Q44 Huw Irranca-Davies: It is best
to draw from my personal experience to follow up the very good
question that was put just then. In my Church the Pope would be
deemed to be setting the gold standard, passed down through his
various representatives here, the diocese would be the employer,
the parish and individuals within that parish might have a wholly
different view. Who is the determinant, who is the arbiter of
what are the genuine needs of discrimination and so on, at what
Mr Magyar: The diocese is the
employer so I think it would be the employer who would be the
organisation seeking to rely on the provisions, and therefore
the answer is the diocese.
Q45 Huw Irranca-Davies: So in respect
of an earlier contribution which referred to Regulation 7(3)(b)(ii)
and the strongly held religious convictions of a significant number
of a religion's followers to be given precedence when determining
whether a discriminatory requirement would be applied; is that
a significant proportion within that diocese or are they getting
lost in the legalese here?
Mr Magyar: I think that a significant
number in the diocese could well be a significant number of the
Chairman: I think we probably
have one question left now you will be relieved to hear. Mr White?
Q46 Brian White: I am still confused
as to why 7(2) does not cover everything you have been talking
about because if you look at the notes on the Regulations you
suggest that "genuine" and "proportionate"
is the same and can be substituted by the "genuine, legitimate
and justified" that is in the Directive. I do not understand,
maybe it is just me being stupid, why broadening that out adds
to what you are trying to achieve. Is that not what is causing
a lot of concern?
Mr Magyar: I think that 7(2),
as I have indicated, is the general provision for any employer.
Q47 Brian White: I understand that.
Mr Magyar: Obviously 7(3) is aimed
at where the employment is for purposes of an organised religion.
Obviously copying out the Directive's wording would be one of
the permissible ways of implementing the Directive but whether
or not to do that it is important to bear in mind how the words
are going to be interpreted by the courts and tribunals as a matter
of English law, so with the wording in regulation 7(2) we feel
that a very clear signal has been given to the courts that this
is a very restrictive exception. Whilst regulation 7(3) is also
a restrictive exception and squarely within 4.1, the difference
in wording to that used in 7(2) we feel gives a clear signal to
the courts that the two provisions are potentially intended to
cover different situations. Nevertheless, we feel both are squarely
within Article 4.1 and I would accept there may be some overlap
between the two and it is possible that a religious organisation
may decide to rely on 7(2) rather than 7(3). I think it would
depend on the particular facts of the case.
Q48 Brian White: You would accept
that the "proportionate" is the same as "genuine,
legitimate and justified"?
Mr Magyar: I think with 7(3) the
provision taken as a whole is consistent with Article 4.1 and
it is pursuing a legitimate aim and is a proportionate way of
pursuing that aim in the Directive.
Q49 Brian White: Is it genuine, legitimate
Mr Magyar: I think it is, yes.
Q50 Chairman: For the sake of clarification
so that we are absolutely clear, may I ask you for an example
of something that is covered by "related to sexual orientation"
in 7(3) which is not caught by "being of a particular sexual
orientation" in 7(2)?
Mr Magyar: I think the starting
point is Article 4.1 which refers to a difference of treatment
based on a characteristic related to a person's sexual orientation.
If something is a characteristic of a person's orientation, it
is typical or distinctive of that orientation. A characteristic
of a person who is gay is his or her attraction to persons of
the same sex, so a requirement related to those characteristics
would be a requirement related to sexual orientation within the
meaning of Regulation 7(3), but it is difficult to see, I would
accept, what else could constitute a difference of treatment based
on a characteristic relating to a person's sexual orientation
other than the requirement related to sexual orientation that
I have indicated.
Q51 Andrew Bennett: So 7(3) is not
necessary, is it?
Mr Magyar: A characteristic feature
of a person who is gay could be his or her propensity to form
sexual relations with persons of the same sex, so a requirement
that a person not enter into sexual relations with a person or
persons of the same sex would be, in our view, a requirement related
to sexual orientation. It would constitute a difference of treatment
based on a characteristic relating to a person's sexual orientation
within the meaning of Article 4.1. That is possibly the most concrete
example I can give of the distinction that I think exists between
7(2) and 7(3).
Q52 Mr Donaldson: Just a couple of
questions finally. Is it true that under the present law a church
or faith-based charity can dismiss or refuse to employ a person
for sexual immorality of any kind and the law has nothing to say
Mr Magyar: If the person is an
employee we think it is a question of unfair dismissal but I cannot
give a definite answer to your question, it is outside my direct
Ms McCarthy-Ward: Perhaps I can
just add a little. The normal unfair dismissal provisions of employment
law will ensure that an employer has to act reasonably in dismissing
somebody for that reason. If the individual had, for example,
brought the religion into disrepute and had been in the sort of
leadership role where that was very significant, it may well be
reasonable for an employer to treat that as a reason for dismissal
but he will have to act reasonably in doing so and these Regulations
will not change that position.
Q53 Mr Donaldson: Is it true there
are broad exceptions for political officers from the sexual orientation
Regulation and, if so, how are these exceptions justified in terms
of the Directive?
Ms McCarthy-Ward: Perhaps I could
start by saying that it is a scope question for both of the Regulations
which cover some office holders and not others, and I think our
clear view is that the Directive does not cover political office
holders. I will pass over to Nick to elaborate.
Mr Magyar: I think it is Regulation
10 that is dealt with in the memorandum that we have submitted.
10 is in some ways similar to section 76 of the Race Relations
Act in its application to appointments made or recommended by
a Minister or government department. It also goes further in that
it applies to any other appointment to an office or post provided
the work is paid and subject to the direction of another person
as to when and where he performs his functions. Regulation 10
does not apply to elected posts or to appointments to political
offices, ministerial posts or posts held by local councillors
within a local council. 
Q54 Mr Donaldson: Finally, on paragraph
24 to the preamble to the Directive, is it true that that paragraph
specifically encourages Member States to provide religious exceptions?
Mr Magyar: I think it would be
more accurate to say that it recognises the particular position
in society of religious organisations.
Q55 Mr Donaldson: Has that influenced
you in terms of the framing of the legislation?
Mr Magyar: Obviously that is one
of the matters to which we have regard in drafting the regulations,
Mr Donaldson: Thank you.
Q56 Earl Russell: Just a footnote,
paragraph 4 does again say a "legitimate and justified occupation
or requirement" and paragraph 2 which introduces it says
"in very limited circumstances".
Mr Magyar: We have had regard
to those recitals and we feel that what we have drafted properly
reflects the terms of Article 4 and also the recitals.
Chairman: I think that
probably draws this session to a close. Before I close it formally
and thank the witnesses, may I just say that when I call the Committee
to order I would ask the witnesses to leave first and then members
of the public because we will then go into private session. On
behalf of the Committee, thank you very much for coming to the
Committee today, it has been most informative, we are most grateful.
Thank you very much.
1 Note by witness: In annex B of
the Explanatory Memorandum (not printed). Back
Note by witness: Because they are outside the scope of
the Directive. Back