Equality Bill

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Q 138John Mason (Glasgow, East) (SNP): We are quickly getting into the area of competing rights. In many ways, the Bill does not deal with it, or find any way out. Out of interest—if we have the time—I want to know from all panel members whether you have any suggestions about how we deal with competing rights. Is it your feeling that the courts have been tending to take the line recently that religion is at the bottom of the list, and if there are eight protected characteristics, will the Bill leave us with religion clearly at No. 8?
Richard Kornicki: I think the answer is yes. There is anecdotal evidence—I do not have details to cite—of the number of court judgments that have seen religion as a lesser right when compared to others. The worry is that the Bill sets up in a number of areas issues where different rights will be in conflict and different parties, both of whom are protected under the legislation, may claim the protection of the same legislation against each other. That is difficult.
It is regrettable that the Bill gives absolutely no indication of the means by which those issues are to be resolved. They have to be resolved, but at present every employer and public authority will be left not knowing what effect the law is intended to have. The result of that, inevitably, will be a chilling effect on public practice to avoid the risk of legal action.
Authorities at every level, with increasing gold-plating, will give themselves precautionary rules to prevent anything from happening. That ultimately means that public dialogue will be much less rich, and it will have a suppressive effect on freedom of religion. It is important to remember that article 9 of the European convention on human rights provides for freedom of religion, not freedom of thought. We are talking about the freedom to practise religion in full.
Q 139The Solicitor-General: As the Minister taking the Bill forward, it is my strong view that there is no narrowing in the definition. I would be pleased to follow the question that Mark Harper put to you, to try to get a clearer answer. Perhaps it is best expressed by saying that it is possible to have an exception. We are talking about licensing discrimination, and consequently you will all accept that that exception must be as narrow as possible. The explanatory notes best encapsulate that by stating that employment for purposes of an organised religion can exclude people if
“appointing a person who meets the requirement in question”
—presumably that is adherence to a faith—
“is a proportionate way of complying with the doctrines of the religion.”
That is the definition, which I do not think narrows down what went before. Perhaps you could help me. I assume that nobody wants a disproportionate way of complying with the doctrines of the religion. Why would you want more licence than merely that which is sufficient to comply with those doctrines? That is a two-pronged question.
Richard Kornicki: We may be at cross purposes. We are looking at schedule 9, paragraph 2(8), which gives a definition of employment for the purposes of an organised religion. I understand that that was not qualified under previous legislation. The Bill qualifies it quite strictly in two sub-paragraphs that limit it to
“leading or assisting in the observation of liturgical or ritualistic practices”,
or alternatively
“promoting or explaining the doctrine of the religion”.
The explanatory notes make it clear that a youth worker, for example, would be excluded under the provision. This relates to requirements relating to sex, marriage or sexual orientation only.
William Fittall: May I add a further point to answer the Minister’s question? The phrase “proportionate means” in sub-paragraph (6) was not in the earlier regulations on sexual orientation. Of course we do not want to argue that we should have disproportionate freedom, but it must be asked what the effect of this measure will be. This is a situation in which once complainants have established a prima facie case, the onus of proof is put on the defendant, which would be the religious organisation. Effectively inserting a requirement that someone has to prove that that is necessary—which is what the religious organisation would have to do—would make this a higher case. In effect, you have provided that for priests, bishops, imams and so on, that would be okay, but we are saying that there is a wider range of jobs.
My director of ministry at Church house has a big representational role. He is not out there teaching the faith, but he is involved in organisation and selection of people for ministry. The director of communications for the Church of England has a representational role, and it would not be credible for him to do his job if he had been married three times and caused a scandal, or if he were a campaigning member for gay rights in a sexually active relationship. Given the Church of England’s position, that would not be consistent. Taken together, I think that sub-paragraphs (6) and (8) make it more difficult for us to impose our requirements. If that is not deliberate, perhaps we could discuss the matter further.
The Chairman: I must interrupt: I am sorry but we are limited in time and I want to move the deliberations of the Committee to the part of the Bill that deals with the impact on religious organisations carrying out public functions. I call John Mason.
Q 140John Mason: On the question of public functions, the main distinction seems to be about whether the public sector as a whole has a duty to provide services. Within that, you could have lots of diverse groups providing those services, or does each individual group have to do everything? For example, the health service provides for abortions, but individual members can be involved in that or not. Similarly, with adoption agencies, schools or other organisations with public duties, do you feel that it is necessary that everybody deals with everything, or is it possible to have separate groups providing different ways?
Andrew Copson: Our view is that there will always be, to some extent, a mixture of provision in that way. There will be some clear needs, especially locally and in particular communities, to provide services by a certain group for a certain group. That is the way that a public authority could satisfy their obligations, but equally it might be the case for services that are delivered or co-ordinated on a national level that they are provided in the other way. However, I do not think that the Bill tends in one direction or the other. Our concern is far more likely to be that if organisations such as religious ones are providing a public function, they are held to the same non-discrimination rules as secular or state agencies and organisations that are performing public functions. That is something that the Bill does not fully do at the moment, because it allows religious organisations to discriminate in employment and in the provision of services, even when they are providing a public service under contract. We would say that they should not be allowed to. We make no judgment about whether it is right or wrong to allow religious organisations to contract to provide public services, but we say that if they do so, they should be subject to the same requirements as everyone else.
Jon Benjamin: It is self-evident that charities and voluntary groups, be they religious or otherwise, make a huge contribution to the welfare services in this country. My concern, again, is about apparent conflicts and managing those conflicts and interpretations.
If one takes the example of a care home for elderly Jewish people or a battered women’s refuge, clearly, they are providing a service, possibly because of the vulnerability of the beneficiaries, for a particular group or minority, religious or otherwise. They are providing a service. They may be doing it at some cost to themselves, therefore relieving the state or the local authority of that burden, but there is concern that the public duty of a local authority that procures those services will be interpreted differently from the exceptions that are quite legitimately open to the service provider. It is a matter of helping the people who will apply this to understand that, notwithstanding their public duty in terms of discrimination and equality, it is legitimate for a particular group to provide a care home for elderly Jewish people, battered Muslim women or whoever it may be. That conflict needs to be managed and explained.
Q 141Dr. Harris: John Mason raised the question of opt-outs and conscientious objection, which exist in statute for abortion. Is it your contention, Mr. Kornicki, that there ought to be more opt-outs for people performing public functions—for them not have to do certain things on the basis of their conscience, religious or otherwise?
Richard Kornicki: What you are suggesting is a new approach to issues in the Bill. I would start from somewhere different, if I may. We are looking for a way in which we can recognise the ability of people to live their lives in accordance with religious teachings as they have done for a very long period, while being consistent with the requirements that the Government are now making. There is a balance to be struck here; in different areas a different approach might be the right answer. Opt-outs might be one answer for some issues—they exist already. There may be other legislative approaches which would achieve the same end, which is what we are concerned about.
Q 142Dr. Harris: One opt-out, and only one, exists in respect of IVF and abortion. There are calls—amendments have been tabled—which argue that doctors should be able to say, “I am not going to treat Muslims, because my religion will not let me” or “I am not going to treat unmarried women who come to me wanting contraception.” Is that the sort of thing that you would support?
Richard Kornicki: Any professional person should have the right to act in accordance with their conscience. That is a fundamental human right that applies to everybody.
Q 143Dr. Harris: So you are not making it compulsory—I accept that. But are you looking for the right of doctors and nurses to say that they are not going to treat gay people, unmarried women, or Muslims if their religion does not like them to do that? Is that the point—
Richard Kornicki: No, it is not. To pick up your example—one has to go back to sources— paragraph 2358 of the catechism of the Catholic Church says that homosexual people
“must be treated with respect, compassion and sensitivity. Every sign of unjust discrimination in their regard should be avoided.”
That is what the Church teaches.
Q 144Dr. Harris: I would certainly endorse that. May I ask a separate question of Mr. Benjamin? There is an exemption in the Bill that allows religious organisations—even, as Mr. Copson said, those performing public functions—to discriminate against people who are seeking to access those public functions, based on their religion. You gave an example of a care home. How do you feel about a Catholic adoption agency saying that prospective Jewish adoptive parents need not apply?
Jon Benjamin: If an adoption agency is catering for Catholic families and helping them to have families and raise them in the Catholic ethos then I do not see a problem. There are agencies out there that will help all sorts of people—gay couples, whoever—to adopt and no one needs to feel that they have missed out. If there is a Jewish adoption agency providing a service for Jewish people, there is equality there. That is real equality, because people have a choice: they can go to the agency that works for them and their way of life.
Q 145Dr. Harris: My last area of questioning concerns harassment. Can I ask Mr. Fittall whether he thinks that, in terms of the Bill, it is reasonable that children in school should be exposed to unwanted conduct if they are gay—conduct, for example, that violates their dignity and creates an intimidating, hostile, degrading or humiliating environment? Can you picture any circumstances where you think that that would be acceptable in schools, on the grounds of sexual orientation, in the terms that I have given?
William Fittall: There are two questions there. One is whether there are any circumstances in which it is right, and the second question is whether it should be made against the law. I entirely agree with you that there are no circumstances in which that should happen. However, as we have discovered after long debates on the harassment issue—in relation not only to employment, but to services and facilities and to harassment on religious or sexual orientation grounds—you quickly get into significant difficulty, because the definition of harassment has an objective element and a subjective element. You have to ask yourself the wider question: how far do you want the law to trespass into territories where good conduct is best promoted by example and encouragement, rather than by the force of law?
Q 146Dr. Harris: I accept that, but do you accept that there is a difference between adults seeking to book a hotel and children who are a captive audience in school, where we know that there is a problem—which none of us would support and I am not accusing you of supporting this—of homophobic bullying, and being subjected to an intimidating, hostile, degrading or humiliating environment in school in front of their peers? By the way, I left out the word “offensive” because that is highly subjective.
William Fittall: Homophobic bullying is disgraceful, and a lot needs to be done. Church schools do their best to tackle it whenever it arises. It is a highly contested area. Let us be under no illusion. The whole question of gay rights remains highly politicised. Do you want to bring litigation into such matters or are they best resolved by other means? Our contention is that bringing the law into that area will not be particularly helpful.
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