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 has called on the UK Government to make changes to its anti-discrimination legislation. It must substantially restrict exemptions granted to religious bodies in relation to the employment of homosexuals.

The NSS complained to the European Commission in 2004 that the Government had 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. It is not permissible under the Directive for even religious organisations to refuse employment to homosexuals for any post other than those concerned exclusively with liturgical practice, such as clergy.

The EU’s equal opportunities commissioner, Vladimir Špidla, has now written to 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 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 people can be denied any job in such organisations solely on the grounds of their sexuality.

The Bill Committee which was drafting the Equality Bill — which is slated to replace the Employment Regulations — was only given details of the European Commission’s findings after the NSS insisted it be furnished with them. The Equality Bill now includes a much narrower exemption – which applies only to clergy and others who are directly engaged in liturgical and ritual matters. This is likely to be in conformity with the Directive.

The EC ruling has caused much consternation among religious groups, such as CARE, that had been agitating for the Equality Bill to include even wider exemptions for religion.

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 MP.”

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.”

Relevant provisions are as follows:

Employment Equality (Sexual Orientation) Regulations 2003 – currently in force:7(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, or

because 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; and

The Equality Bill 2009 (currently being considered by Parliament) reads (as at 23 November 2009):

(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).

On Tuesday, Keith Porteous Wood brought a detailed account of the European Commission’s action to a meeting in Parliament of a coalition of religious and secular groups called the Cutting Edge Consortium. A number of speakers at the meeting were keen to emphasise that many individual Christians abhorred religious discrimination against homosexuals. Keith acknowledged this but said that those with the power, the leaders, almost to a man (and they practically all are men) would go to any length to retain the legal right to discriminate. In support of his contention, he cited the Lords debates on the Sexual Orientation Regulations in the Equality Act 2006, during which not one religious leader supported the regulations.