Examination of Witnesses (Questions 1-19)|
Draft Employment Equality (Religion or Belief)
Regulations 2003 and draft Employment Equality (Sexual Orientation)
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
Mr Magyar: I am Nick Magyar. I
am head of the legal branch with responsibility for drafting the
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 thatultimately, 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
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
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
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
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
Q17 Earl Russell: Why then is this
argument allowed for a religion and not for Cardiff Conservative
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?