Yesterday in the Lords, Conservatives led defeat of a Government amendment to the Equalities Bill that would have forced religious bodies to, for example, employ gay people. Below we publish extracts from the contributions of Baroness O'Cathain and Baroness Warsi in defence of the freedom of religious association.
Freedom of appointment: "Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs. It would, for example, be appalling if the Labour Party could be sued for not selecting Conservative candidates and no one would want to see Greenpeace sued for refusing to appoint oil executives to its board of directors."
We must defend freedom of association: "A belief in freedom of association demands that, even if we do not share the beliefs of an organisation, we must stand up for its liberty to choose its own leaders and representatives. That, in essence, is what this debate is all about. I accept that the Government intend to protect the freedom of churches to choose their own staff, but their wording does not mirror that intention. The exemption in paragraph 2 to Schedule 9 to the Bill allows churches to discriminate on the grounds of sex, sexual orientation and marital status when making appointments to key religious posts. An exemption along these lines has existed for more than 30 years. Some think that this is special pleading for the churches, but the principle of exemptions is widely accepted, not just for religion."
It's not just churches that need protecting: "How would a rape crisis centre operate if it was forced to employ male counsellors? Beyond the employment sphere, Schedules 3 and 6 contain broad exemptions for insurance, political posts and for Parliament itself. Clause 193 even contains an exemption for sport, so the churches are not alone in needing limited exemptions from discrimination law in order to allow them to function normally."
Why is the Government tinkering with a system that works? "It has been said that paragraph 2 is intended to be nothing more than a restatement of existing exemptions for religion. However, the Government have tinkered with the wording. Whereas the key phrase, "employment is for the purposes of an organised religion", was previously undefined, the Government decided to insert a new definition, contained in paragraph 2(8). In addition, whereas previous legislation did not include the qualifying word "proportionate", that word now appears twice in paragraph 2. If the Government's intention was to maintain the status quo, as they have said continuously since April 2009, why not use the same wording? After all, it has been in use without difficulty since 1975, when it was incorporated in the Sex Discrimination Act. By tinkering, they have caused enormous concern among religious groups. It is essential that the wording is returned to what it was. All the religious groups and their lawyers say that the result of my amendments would be the retention of the status quo. That is what we want-nothing more and nothing less… The Church of England briefing that we all received last week says that paragraph (b) leaves, "an unacceptable amount of legal uncertainty"."
What is at stake: "As the law stands, where the employment is for the purposes of organised religion, an employer may apply a requirement for a person to be of a particular sex, or not to be a transsexual person, or make a requirement on the basis of the employee's marriage or civil partnership status or sexual orientation, as long as the requirement is in line with a genuine occupational requirement, "for the purposes of an organised religion". We believe that the Bill as currently drafted significantly narrows the scope of roles which would be included as "for the purposes of an organised religion". It does this by narrowing the definition of employment in this context to those roles which "wholly or mainly" involve, "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or, "promoting or explaining the doctrine of religion". There is a clear difference between a more general "purposes of all religion" and the more narrow specification of what that entails. The current law is contained in regulation 7(3) of the Employment Equality (Sexual Orientation) Regulations 2003, which states that a requirement may only be imposed by religious organisations "so as to comply" with religious doctrine or "so as to avoid conflicting" with religious convictions. The drafting of the Bill would add a requirement to be proportionate, which introduces another layer of legal necessity and so means that it is further removed from the status quo."