NSS forces Government to remove religious opt out from discrimination law
Following a complaint from the National Secular Society, the European Commission’s Equal Opportunities Commissioner Vladimír Špidla has called "on the UK Government to make the necessary changes to its anti-discrimination legislation as soon as possible so as to fully comply with the EU rules. In this context, we welcome the proposed Equality Bill and hope that it will come into force quickly."
The NSS complaint to the European Commission was made in 2004. We accused the UK Government of having gone further than the EU Employment Directive permitted in granting exemptions to religious bodies to discriminate against gay employees in the Employment Equality (Sexual Orientation) Regulations 2003.
The exemption about which the Society complained licensed discrimination by organised religion on the grounds of sexual orientation "so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers". In other words, gay employees can be denied any job in organised religion solely on the grounds of their sexuality. This is no longer permissible.
The exemption was inserted into the Regulations after public consultation on the Regulations had closed. The insertion was made as a direct result of intense pressure from the Church of England’s Archbishops’ Council and appeared almost verbatim as they demanded. It was also made without consultation by the Government of groups representing those likely to be adversely affected, such as Stonewall. The reason for this lack of consultation, according to a civil servant giving evidence at a joint select committee hearing in 2003, was because the Church considered the exemptions did not go far enough.
The Bill Committee drafting the Equality Bill, which is slated to replace these Regulations, was only given details of the Commission’s objections, at the Society’s insistence. The Bill (as introduced into the 2009/10 session, as at 19 November 2009 Sch 9 Para 2(8)) includes a much narrower exemption, which is likely to be in conformity with the Directive. This is self-evident from the current regulation and proposed replacement clauses reproduced below.
Curiously, the Government maintains that it is not a narrower exemption, it is simply spelling out more specifically the narrow exemption that was in place before, adding that the narrowness conforms to case law, but this case law arose subsequent to the coming into force of the Regulations. The Joint Committee on Human Rights, are also unconvinced by this argument.
This greatly displeases religious organisations such as CARE.
The EU’s equal opportunities commissioner, Vladimir Špidla, has served the Government with a “reasoned opinion” which is, in effect, a legal ruling that the UK must change the current legislation (i.e. the Employment Regulations) to conform to the Directive. The opinion says that “exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the Directive”.
The Government is urged to put the mistake right in the new Equality Bill as, indeed, it is trying to do. Under the new proposals being drafted by the government, religious organisations will be able to refuse to employ homosexuals only if their job involves actively promoting or practicing a religion.
The relevant provisions, currently Schedule 9 paragraph 2(8), are however facing mounting religious opposition. But even these provisions are not passed in the Equality Bill before the General Election, future governments will still be bound by the Commission's ruling and be required to correct the current Regulations.
It is no surprise to us that the very part of the Employment Equality (Sexual Orientation) Regulations 2003 which the Commission are ruling that is in conflict with the Directive is the very part that was introduced by the Government:
1. as demanded by the Church of England Archbishop’s Council in their letter of 23 January 2003 (copy available on request) direct to the DTI seeking discussions “at a very senior level of Government ... if a satisfactory solution cannot be found”.
2. after the public consultation had closed, and therefore giving the Church privileged access
3. without further consultation with parties likely to be affected, despite concern over this lack of consultation being raised in the Joint Committee on Statutory Instruments (JCSI). During a JCSI evidence session held in public a civil servant (later – understandably - “corrected” by his manager) sought to justify the omission on the grounds that the Church thought the exemptions did not go far enough.
4. despite other concerns raised by the JCSI over its vires [1]
5. despite concerns raised in Commons Committee on the Regulations, for example Dr Evan Harris: raising the concerns of the JCSI (above) and asking for example “Can [the Minister] explain why regulation 7(3) is required at all?” [2]
6. despite a clear warning from Lord Lester of Herne Hill in the Lords debate on the Regulations that Regulation 7(3) was incompatible with the Directive. [3]
Keith Porteous Wood, Executive Director of the National Secular Society, said: “It is no coincidence that the very regulation (7(3)) shown to breach the Directive is the one that was demanded by the Church of England after the consultation had been closed to everyone else. It was accepted almost verbatim by the Government despite concerns about its legality raised by the Joint Committee on Statutory Instruments, and parliamentarians in both Houses of Parliament. These included Human Rights expert Lord Lester of Herne Hill QC, and Dr Evan Harris.”
Mr Wood added: “The NSS is very pleased to have disturbed the cosy arrangement that the Church has with this Government and hope it reduces the endemic discrimination in religious organisations against gay employees. The CofE could never have gained these opt outs by openly lobbying for them, so they were allowed to do so behind closed doors, more iniquitous because the regulations were not even subject to subsequent amendment by Parliament as they are secondary legislation.”
Existing provision and provision now proposed
Relevant provisions are as follows:Employment Equality (Sexual Orientation) Regulations 2003 – currently in force:(3) This paragraph applies where—(a) the employment is for purposes of an organised religion;(b) the employer applies a requirement related to sexual orientation—(i) so as to comply with the doctrines of the religion, orbecause of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers; andThe Equality Bill 2009 (yet to be passed by Parliament) currently reads (as at 23 November 2009)
Schedule 9 Para 2:(8) Employment is for the purposes of an organised religion only if the employment wholly or mainly involves—(a) leading or assisting in the observance of liturgical or ritualistic practices of the religion, or(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).
[1] JCSI 21st report (ordered to be printed on 13 June 2003) para 1.1: “The Committee draws these draft Regulations to the special attention of both Houses on the grounds that there is a doubt as to whether regulation 7(3) is intra vires”
[2] Draft Employment Equality (Sexual Orientation) Regulations 2003 Fourth Standing Committee on Delegated Legislation Tuesday 17 June 2003, cols 30 – 55 e.g. col 30 Dr Evan Harris “Does that not take regulation 7(3) beyond the scope of article 4.1 ...” and Mr. Russell Brown (Dumfries): “Why does regulation 7(3) not specify ministers of religion if that is what it really means?”
[3] Lord Lester of Herne Hill rose to move: That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC. House of Lords Hansard 17 Jun 2003 : Column 751