Equality Bill

[back to previous text]

Mr. Boswell: The hon. Gentleman makes some reasonable points, but does he not agree that there is danger in this regard? Although there may be good, sensible organisational reasons that reflect management theory, if one dares put it that way, for a separate organisation to be set up to focus on the specific subsidiary activity of letting the church hall, allowing the parish priests to get on with their pastoral duty, it would be bizarre if something that was sensible in administrative terms created a difficulty in terms of potential liability under the clause. My point possibly reinforces the one that the hon. Gentleman is making.
Dr. Harris: The hon. Gentleman’s point is the corollary to mine, which is that, if I am right, there would be a disincentive for the church to delegate the renting operation. We should come to first principles. Is it right that a hall can be let to all sorts of organisations, except gay organisations? That is wrong. Therefore this provision ought to be tightened up to make that clear, because we are considering the ends; it should not be about organisational matters.
John Mason: Again, I wonder about the practical implications of what the hon. Gentleman suggests. If a church cannot control who it lets its hall to, I suspect that a lot of churches will not let them at all. People would suffer as a result of our becoming strict on this point, including the single mothers who are taught how to cook by a community group in my church’s hall.
Dr. Harris: The same argument was used in respect of gay adoption, when people said, “If we’re not allowed to discriminate, we won’t play and we’ll take our ball home.” Those terms were used in the debate about Catholic adoption—not by me, but by Labour and some Conservative hon. Members when describing that attitude. It is blackmail, essentially—I do not mean that in a particularly nasty way. Essentially, people are proposing to withdraw their service if they are not allowed to discriminate. Of course, they will lose money as well, so it is their decision to make.
I am asking the Government what they think the situation is with regard to a church in the two positions that I have mentioned.
I have already dealt with my proposed amendment to sub-paragraph (10), in the sense that amendment 251, which would insert the words, “or religion”, asks the Government to say that those organisations delivering a public service should not be allowed to discriminate on the basis of religion. I have explained previously, so I will not do so again, that without the amendment, when combined with the public sector duty to promote equality of opportunity, the current provision may lead to other religions seeking their own specific service as soon as public services are delivered to one religion only. I do not think we want to go down that path.
Amendment 305 was tabled so that I can ask why the restriction that currently only relates to sexual orientation, but which we believe should apply to religion as well, only relates to section 27, which deals with services, and not to other parts of the Bill dealing with premises and associations, for example, which, by analogy, might be regarded as being related. I may not have understood the architecture of the Bill.
This has been a good debate that was appropriately short, given that we have debated these things before.
The Solicitor-General: The Government sought to obtain a difficult balance as long ago as the passage of the Equality Act 2006, and reasserted that balance in the Equality Act (Sexual Orientation) Regulations 2007, so there is nothing new under the sun, and not terribly much in this debate, I am afraid, compared with previous ones. We think that we have found the right balance, and the amendments would change it in one way or the other.
Amendment 58, for instance, would extend the exemption for religious and belief organisations to cover even primary commercial organisations, so an entirely commercial enterprise such as a Catholic bookshop could presumably refuse to serve someone because they were Jewish.
Amendments 295 and 296 were tabled, I think, to enable the Committee to consider where the line should be drawn. Much would depend on the specific details of any case about what is or is not a separate organisation.
The hon. Member for Daventry raised the question of when something would have a solely or mainly commercial purpose, and when it would not. He predicted the only answer that I can give, which is that we put the best definition we could come up with into the clause. It will be a matter not of mathematical percentages but of a court, if it comes to that, making an assessment on the basis of the facts in each case.
Certainly, if a church kept a commercial activity to itself it would have more scope for discriminating than it would if it subcontracted to a separate company, even though the activity would take place under its auspices; the subcontractor would be likely to be a different organisation from the church or other organisation. So although I can see that, at the edges, the provision might look faintly odd, it is none the less as good a way as can be thought of to set out what is intended.
Dr. Harris: Has the Minister considered referring to an activity that is commercial? That would give much more certainty, given the problem, which she quite fairly recognises, about when an organisation is a religious organisation, and the degree to which the management is contracted out. Thinking about it as an activity would clearly take away any of the liturgical stuff, and the stuff that the church does as its main activity, and would just leave the commercial activity that a church might be involved with free from discrimination.
The Solicitor-General: The definition is posited on what I think is the sensible thing: the purpose of the activity, rather than the activity itself. The question is whether it is solely or mainly commercial. That must be the right approach.
Amendment 295 could potentially mean that any organisation that could not be considered solely commercial could take advantage of the exemption, even if it was predominantly commercial. The effect of amendment 296 would be that if a particular service provided by a religious or belief organisation was commercial, it would fall outside the exemption, where the issue was sexual orientation discrimination, but not where it was religion or belief.
The church hall example stands. Under the amendment, if there were, for instance, a nominal fee for use of a church hall, to contribute towards its maintenance costs, it would be possible to refuse to let the hall to people whose religious beliefs were offensive to the followers; but that would not apply in the case of a gay or lesbian group, even if letting to that group would—and it is hard to understand why it would—outrage some particular members of particular religious communities. The question is really one of trying to achieve balance and proportion. The test seems to us to be the right one.
2 pm
Amendment 305 would operate in different ways, specifically with respect to the performance of functions by a religious or belief organisation, if it was under contract to a public authority. Paragraph 2 of schedule 23 does not allow discrimination on grounds of sexual orientation in the provision of publicly contracted services. However, it does in theory allow such discrimination in relation to disposal of premises, and management of premises in which the organisation retains an interest, if the other requirements in the paragraph are met. It is hard to see how a contract with a local authority would affect that. I cannot see the point of the amendment, but the hon. Member for Oxford, West and Abingdon makes it clear that his amendments are probing anyway.
A small group of people from the local Anglican church getting together and organising Christmas lunch for the needy in their religious community is one thing, but the Church House bookshop is quite another. Bookshops, hostels and the like could have a religious or other ethos, but they are essentially commercial. The Government’s position in that regard is clear: commercial organisations should provide goods, facilities and services without prejudice. However, not-for-profit organisations, which may engage in some level of commercial activity to support their wider activities, should not automatically be excluded from the benefit of the exemption in paragraph 2.
Amendment 59 also covers familiar ground. The amendment would allow a religious or belief organisation to discriminate on grounds of sexual orientation, even when acting on behalf of a public authority. That brings us back to the much-discussed issue of Catholic adoption agencies. The Government made it clear when the regulations were introduced that there would be no specific exemption for faith-based agencies offering publicly funded services, and that remains our position. However, we did not, as the hon. Member for Glasgow, East asserted, disregard the concerns of faith bodies at all. Significant funding was made available to help all of them to understand the regulations, which they said was extremely helpful—£500,000 was given to voluntary adoption agencies to help them to understand and tailor their services so that the regulations were complied with. Most agencies have moved to an open policy: assessing same-sex couples as prospective adopters too. There has not been any impact on services. I am in the rare but happy position of agreeing totally with the hon. Member for Oxford, West and Abingdon that the change has done no harm and was right.
To clarify, a Catholic or other religious adoption agency that did not accept public funding would be able to benefit from the exemption in paragraph 2, because it would only be prevented from discriminating on the ground of sexual orientation if it was acting on behalf of a public authority. I hope that clarifies the matter for the hon. Member for Glasgow, East.
Amendments 59 and 251 address the same topic from opposite directions. The difference in approach between religion and belief and sexual orientation is justified. There could be a legitimate reason why a local authority chooses to contract a number of organisations to provide a particular service, including a religious organisation that only provides that service to those of a particular religion. The provisions are not new. It is entirely legitimate for a council to contract a Jewish organisation to provide kosher meals on wheels, but we cannot envisage any circumstances in which a religious organisation providing a public service should legitimately be allowed to provide it only to those of a particular sexual orientation.
There must be a balance. The issue has been debated many times—not least in the Committee—and whether the balance is right is a thorny question. However, there were debates before the Equality Act in 2006 and the regulations in 2007, all of which have informed where the line is drawn, and we think that we have the balance right. The fact that two completely conflicting amendments have been tabled also cheers me into thinking that we have the right balance.
Dr. Harris: I want to respond on two points. First, there is nothing wrong with asking a Jewish organisation to deliver kosher meals—we cannot prevent such an organisation being a provider when a secular one is allowed. However, is it necessary to restrict the delivery of kosher meals to Jewish people and prevent delivery to Muslims, if they are happy to take the food? Even if the function is a public one, funded by public money, that is unnecessary.
Interestingly, in her response the Minister talked about the activity being commercial.
The Solicitor-General: The purpose.
Dr. Harris: The Minister is right, and I am glad that she has corrected me. She said that the purpose needs to be commercial, but that means the purpose of the organisation. My case is that it might more satisfactorily meet the problem of a bookshop that is not delegated, if the language referred to “The activity, the purpose of which was solely or mainly commercial”. I think that covers all bases, and I hope that, even if she does not rise to respond again, the Minister will consider that. That might solve the problem of the fact that churches and religious organisations can now see how to get round the solely or mainly commercial aspect, by not having a subordinate organisation running that activity.
The Solicitor-General: We think that the way we have done it now is better. It is up to organisations to manage themselves as they see fit. I am prompted to say that a bookshop is not likely to meet the other criteria anyway, so how it is organised probably would not make all that much difference in the example given by the hon. Gentleman. That is where we are; we think that we have the balance right, and I invite the hon. Member for Glasgow, East to withdraw his amendment.
John Mason: I have listened to what is being said. I am encouraged by the Solicitor-General when she uses words such as “difficult balance” and “proportionate”, which to be fair she has done throughout the sittings of the Committee. That is what we are all looking for.
I am a little disappointed by some of the other comments. I wonder whether the evidence supports the idea that there has been no problem or loss of service, when adoption agencies are closing down. The examples of a bookshop or publisher not serving somebody were definitely not what I was aiming at. I have no problem with legislation saying that a bookshop or a printer must serve anybody who comes in. The problem is about the material. Is the bookshop being forced to sell or publish material that it is not happy with? Is the printer or the website designer being forced to produce material that they are extremely uncomfortable with? That would require some negotiation, as was suggested by the hon. Member for Oxford, West and Abingdon, and I agree with him about that. Perhaps somebody could look at that point later.
The issue of religious organisations being provided with funds to understand and tailor their practices is, I think, a draconian method whatever it applies to. It implies, “We will not discuss it, we will just give you money to understand us.” On the basis that all those matters have been discussed, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Previous Contents Continue
House of Commons 
home page Parliament home page House of 
Lords home page search page enquiries ordering index

©Parliamentary copyright 2009
Prepared 3 July 2009