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Lord Harries of Pentregarth: I am sorry to interrupt the right reverend Prelate, but the whole tenor of his speech seems to be in support of the Government's amendment. I cannot at the moment distinguish his position from what has already been made clear by the Government about the kind of categories that will be included-the very categories that he is mentioning.
The Lord Bishop of Winchester: That is not the point, as I and others see it. It seems precisely that, just as the noble and learned Baroness, Lady Butler-Sloss, noted, this language of "exists" threatens to narrow rather than to replicate the existing law and threatens to lead us, because there are people who want to bring cases against churches to test all this out, into defending an utterly unnecessary series of legal actions. We are as aware of the question of proportionality as anyone else is and we know the background law. That is my response.
My anxiety is that the kind of things that I have been speaking of make paragraph 2(8), as we have been saying for months, simply an unrealistic nonsense. The situation is little improved by government Amendment 99A. The Government are quoted in paragraphs 175 and 176 of the Joint Committee on Human Rights scrutiny report as saying that they are confident that they understand the legitimate needs of the churches in this matter, but their own amendment undermines that still further. It is for that reason that I ask the Committee to support Amendments 98 and 99.
Lord Warner: Does the right reverend Prelate accept that, even if this Committee passes the amendments proposed by the noble Baroness, Lady O'Cathain, the reality is that he will be governed and restrained anyway by the framework directive, so he will be back straightaway in the position that the Government's amendment produces?
The Lord Bishop of Winchester: No. We have heard that point argued on different sides of the Committee by eminent lawyers and I am by no means convinced that the noble Lord is accurate in what he has said. If he were, the points made by the noble Lord, Lord Pilkington, who is no longer in his place, would be exactly exemplified.
Lord Lester of Herne Hill: My Lords, the right reverend Prelate said that I have not been accurate. Does he mean by that that I have misquoted the directive and its reference to proportionality, or the case law? What exactly does he mean?
Baroness Deech: My Lords, I have thought long and hard about this matter and I wish to share a short and general thought on the issue. Equality, human rights and freedom have become in themselves a religion or a philosophical belief-almost organised, in fact, given the number of bodies that exist to enforce them. We have, therefore, a clash between two sets of religious or philosophical beliefs and I see no reason why one should be superior to the other. Indeed, equality, freedom and human rights have grown out of the older established religions. To prevent the older established religions from continuing to teach their principles will, in the end, produce a generation that cannot see the point in equality, freedom and human rights, the justification for which lies originally in religion.
Since we are, in my view, dealing with clashes of philosophical beliefs, there is a danger for those who uphold equality, freedom and human rights-I, of course, am one of them-that this becomes like a juggernaut, crushing all other religions. Anyone who stands in the way gets the sort of treatment that reminds me of what took place when there were clashes between the organised religions a few hundred years ago. It behoves those who believe in equality and freedom to be magnanimous and tolerant and to allow other religions the same freedom that equality itself, and all that goes with it, has.
It is for that reason that I support the amendments tabled by the noble Baroness, Lady O'Cathain-with one other proviso. Court intervention in religious matters has not worked well. If, according to European law, we must be proportionate, writing that into the legislation is unnecessary because it is there anyway. However, the courts have great difficulty. I instance a recent judgment about a faith school where the noble and learned Lords of the Supreme Court-not always Lords now-admitted that it was a shame that the case had come to court and that what was being done was not at all appropriate. We ended up with a rather sad judgment, which flew in the face of the way in which Jews have defined themselves for thousands of years. The intervention of the court should be avoided if at all possible. It costs hundreds of thousands of pounds and may not be appropriate.
Lord Graham of Edmonton: My Lords, I rise to make a brief intervention. Over the weekend, I listened to the warning given to this House that today there would be a big issue that should merit our attention. The House is aware that, over the years, in religious matters, I have not played a part-never mind a major part. However, I was moved to reflect on this situation.
Many people in this House-and some make a declaration of it-are Christians, with beliefs and doctrines, and a life encompassed by a religious phrase. I confess that, at my age, I have been open to persuasion from a great many people and a great many causes but have never been moved to declare myself a Christian with a capital C. When I look at what Christianity is-its precepts and concepts-I subscribe to them. When I was younger, I was a Sunday-school teacher, which I enjoyed. When I joined the Royal Marines in 1943 and the man in charge said, "I now need to take down your religion," I said that the only religion I could remember is the Congregational Church and that I was a member of the Boys' Brigade. He said, "Right. You're an OD." I asked, "What's an OD?". An "OD" stood for "other denominations".
I have gone through life not moved as obviously as so many people here, and in other places, are by these issues. When a Bill appears, people can see that there is an aspect to it that needs to be varied, words changed. I came to the Equality Bill not moved by a religious fervour, but moved by the kind of things that most people understand by a lack of equality in gender, economics and many other ways.
What the Government have been doing, defending and attacked for doing is listening to what has been said. It remains for the House to decide whether they are right or wrong. In a few minutes time we will go through the Lobbies.
I cannot recall that people in my former seat of Edmonton talk of little else but proportionality or things like that. Quite frankly, most ordinary people are not moved by the issues that are taking centre stage here. An hour ago, the Government and the Leader of the House were trying to get the wording as right as possible.
Reference has been made by more than one noble Lord to the briefs that they have received. I have not received those briefs, but I received briefing from the Humanist Association and other bodies. I respect those bodies and I read the briefing. The issue on which I received more representations than any other was Section 28. I received more than 500 letters on that. Out of courtesy I replied to all of them and said that I would listen to the debate and take note. I cannot believe that the issue we are discussing will arouse as much passion as Section 28. That issue, which was so big and aroused such strong feelings, was accepted and has faded, and the Government have done their best to move on.
As regards religious tolerance, I detect that certain words indicate that the Church of England and religious bodies and faiths feel that they are being attacked, undermined or not listened to. I do not speak for the Minister or for the Government, but, frankly, that notion is laughable and ludicrous. The Government are trying to do what they believe is right and are listening very carefully. The Minister will point out that the last thing this Government want is another fight with somebody else; they have enough on their plate and do not want any more. The Government deserve support for their attitude to the Bill, and will get mine.
The Lord Bishop of Exeter: My Lords, I am grateful to the noble Lord, Lord Lester, for taking us in his inimitable way through the wider complexities of European law and regulation. I should like to return to that.
Reference has been made to the reasoned opinion of the European Commission concerning the implementation in the UK of the EU equality and employment directives. I fully accept the assurance that Amendment 99A is not a response to that reasoned opinion, but is motivated by listening to the concerns of the churches and other faith communities and trying to meet them, for which I am grateful. However-there is always a "however"-there is a further sense in which the EU context is, I believe, both relevant and instructive. The only other two EU states against which infraction proceedings have been taken to date in connection with the employment framework directive and the equal treatment directive are Ireland and Germany. In Germany, concerns have been expressed by the churches which are very similar to those expressed in the Chamber today. In the light of those concerns, that part of the infraction proceeding dealing with the churches has been withdrawn for various reasons, the main one being that Germany, like many countries in Europe, has a written constitution with a self-determination clause for churches, and so the demands of the churches were deemed to be reasonable.
In the UK, we lack such a written constitution, which is perhaps something to be regretted. However, where we stand at present is that implicit in the law as it stands is an acceptance of such faith community self-determination. My problem with the Bill, and the amendment tabled by Her Majesty's Government, is this-and I think it is to this that the noble and learned Baroness, Lady Butler-Sloss, and others have alluded-that it takes us yet a further step away from such self-determination and in the direction of state, court or tribunal determination in matters which touch the very heart of religious faith and life. It is for that reason that I welcome the amendments in the name of the noble Baroness, Lady O'Cathain, and I do hope that your Lordships will welcome them too.
Lord Tebbit: I will just make one short observation. It seems from what has been said from the Benches opposite and from the noble Lord, Lord Lester, that we have a choice tonight-whether we walk in fear of the law of the Lord or the law of Brussels. I know which way I am going.
Baroness Warsi: My Lords, that is a very interesting point at which to rise. I noted earlier the comments made by the noble Lord, Lord Davies of Coity, about his commitment to his religion over his commitment to his political party. As a Muslim I am quite concerned these days to talk about my commitment to my faith as opposed to my commitment to anything else because I may occasionally be seen as a security risk.
Powerful arguments have been put forward by the noble Baroness, Lady O'Cathain, the most reverend Primate the Archbishop of York, and the noble and learned Baroness, Lady Butler-Sloss. As the law stands, where the employment is for the purposes of organised religion, an employer may apply a requirement for a person to be of a particular sex, or not to be a transsexual person, or make a requirement on the basis of the employee's marriage or civil partnership status or sexual orientation, as long as the requirement is in line with a genuine occupational requirement,
There is a clear difference between a more general "purposes of all religion" and the more narrow specification of what that entails. The current law is contained in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which states that a requirement may only be imposed by religious organisations "so as to comply" with religious doctrine or "so as to avoid conflicting" with religious convictions. The drafting of the Bill would add a requirement to be proportionate, which introduces another layer of legal necessity and so means that it is further removed from the status quo.
As this Bill made its progress through another place and your Lordships' House, the Government have stuck firmly by their claim that they have only clarified and not narrowed the definition. I would question this for two reasons. First, the Government have claimed that there is a need to clarify the language. In another place, the Solicitor-General stated that,
and that further clarity was needed to "clear up misunderstandings". Yet we have seen no evidence of this. The only support we have heard for this claim of
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Can the Minister therefore tell us whether there has been any court or tribunal case about specific newspaper articles, and can she inform the Committee what evidence there is of detriment being suffered which would warrant the change in the law? I should state that I would be expecting to see a great deal of evidence to merit that change. The Government have stated time and again that they are not changing the law one iota, but just clarifying it. The fact that they have stuck so firmly to this line, in the face of almost overwhelming opposition and evidence to the contrary, suggests that there must be a powerful argument, backed up by powerful evidence, for the need for this further clarity.
Secondly, the Minister will not be surprised to hear that we would like to raise the European Commission's reasoned opinion 226. Noble Lords will now be aware that the exemptions for organised religion passed in 2003 were broader than those allowed by the employment directive of 2000. Paragraph 19 of the reasoned opinion stated, however, that:
This brings us to a difficult situation. We have been told that the Government have not changed the law at all, just clarified it. The European Commission has been told, although I hear what the Minister says in response, that it has indeed been narrowed to fit with the directive. Perhaps the Minister could-
Lord Wedderburn of Charlton: I am sure the noble Baroness would not wish to be unfair to the Government in any respect, but it has been argued that, for example, the doctrine of proportionality is already part of European law and was therefore part of the law in this area before this Bill was ever thought of. The fact that the Government have put in "proportionate" has not produced some fresh or new element; it has stated the law as it is, but making it much clearer that benefits for those of a religious persuasion that were not proportionate to the issue would not qualify. This is not therefore a new part of law, although some noble Lords sitting in front of me have argued points about law which are perhaps best left to judges-I would not say merely to lawyers. There is not a new element in what the Government propose.
Baroness Warsi: The noble Lord makes an important point and it is to clear up that confusion that I raised these questions with the Minister. If there is some confusion about what the European Commission says the Government have said, and what the Government say they have said, she should be able to tell the Committee where that confusion arises from. Can the Minister confirm whether appropriate representations have been made to the European Commission about its confused understanding of what the Government have or have not said to them?
The Minister has taken time to inform the Committee of the Government's new Amendment 99A. We are grateful that the Minister has listened to the concerns
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We on these Benches are not asking the Minister to change the law and we are not asking for a new exemption for religious organisations, but the case of Amicus makes it clear. The confusion appears to be in the Government's drafting, in the inclusion of "proportionate" in the Bill. My understanding is that the Government may argue that to take out "proportionate" would raise questions both in the European Commission and in courts of law. We cannot argue that a particular amendment should not be passed because the Government drafted it wrong when they first drafted the Bill. I understand that the Government are making representations to the European Commission that the law as it stands complies. If that representation is being made and the Government believe it, what is the necessity to change the law? I hope that I have made it clear that we are merely asking that the status quo be preserved.
Baroness Royall of Blaisdon: My Lords, this has been an excellent debate on an important group of amendments. I have to say that some aspects of the debate have saddened me, but none the less it has been extremely important and reasonable in many ways.
Amendments 98 and 99 are in the names of the noble Baroness, Lady O'Cathain and the noble and learned Baroness, Lady Butler-Sloss, my noble friend Lord Anderson and the right reverend Prelate the Bishop of Winchester. These amendments would remove the express test of proportionality in sub-paragraphs (4) and (5) of paragraph 2. In effect, paragraph 2 would state that complying with religious doctrine or avoiding conflict with strongly held religious convictions, are automatically proportionate occupational requirements.
Paragraph 2 replaces and harmonises the two separate exceptions for religious occupational requirements in current discrimination legislation that my noble friend referred to when replying to the debate on my noble friend Lord Alli's Amendment 97E. The existing exceptions do not expressly include a proportionality test, as many noble Lords have said, but it is implicit, and its expression in paragraph 2 does not narrow the exception. It simply clarifies the existing law, reflecting, as the Joint Committee on Human Rights pointed out in its recently published report on the Bill, the approach adopted in the Amicus case to which I referred earlier.
that the 2003 regulations implemented. Regulation 7(3) was intended to form part of the implementation of Article 4(1) of that directive, which requires the implementing legislation-regulation 7(3) and, therefore, paragraph 2 of Schedule 9-to incorporate a proportionality test.
The proportionality test is fact-sensitive, meaning that what is proportionate in any particular case will depend on the circumstances. Therefore, in a case being taken to an employment tribunal, this would require assessment by the tribunal, but it would not be necessary or indeed appropriate for the tribunal to determine whether the doctrines of a particular organised religion could themselves be said to be proportionate. Rather, the tribunal would have to decide, in the particular circumstances of the case, whether applying the requirement in question was proportionate to comply with the religion's doctrines or avoid conflicting with a significant number of the religion's followers' strongly held religious convictions. For example, it is unlikely that applying a requirement to a senior church representative not to be married to a divorcee would be a proportionate way of complying with the doctrines of the religion if the person's spouse previously had been married only briefly before converting to Christianity. I am very grateful to the noble Lord, Lord Lester, for his clear explanation of proportionality and the European law. I note the concerns expressed by the noble and learned Baroness and I shall return to those shortly.
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