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Archbishop of York speaks out on Employment Exemptions for the Church in the House of Lords

Monday 25th January 2010

The Archbishop of York speaks out at the Committee stage of the Equality Bill calling for employment exemptions for the Church to be maintained.....

The Archbishop of York: My Lords, I want to explain why I shall be supporting Amendments 98, 99 and 100, moved by the noble Baroness, Lady O'Cathain, in preference to Her Majesty's Government's Amendment 99A.

This debate has the potential to be one where the competing arguments pass each other like ships in the night. We do not want it to be like the radio exchange recorded between an American naval ship and Canadian authorities off the coast of Newfoundland in 1995. The Americans said, "Please divert your course 15 degrees to the south, to avoid collision." The Canadians replied, "Recommend you divert your course 15 degrees to the north, to avoid collision." The American captain said, "This is the captain of a US Navy ship. I say again divert your course." The Canadians replied, "Negative. You will have to divert your course." Americans: "This is the aircraft carrier USS Missouri. We are a large warship of the US Navy with heavy weaponry and nuclear warheads. Divert your course now!" Canadians: "We are a lighthouse. Your call." It is true.

It is important, as we make up our mind on the choices before us, that we are clear what they are. Are the disagreements ones of principle or are they about how best to reflect agreed principles in how the Bill is drafted? Arguing about drafting may be less exciting than arguing about principles, but we are a legislative Chamber. When important issues concerning individual rights and religious freedom are at stake, we have a duty to ensure not only that the principles are right, but that the drafting is clear.

There are those who struggle with the concept of allowing any exemptions for religious organisations from provisions relating to discrimination in the field of employment. But the argument is simple. Religious organisations, like all others, must be able to impose genuine occupational requirements in relation to those whom they serve. There are many jobs that you can do for the Church of England without necessarily being an Anglican or indeed a Christian. But for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case.

Even within religious organisations, certain requirements about marital status or personal conduct may be different between roles. An obvious example is that the Roman Catholic Church insists that priests and bishops are male and unmarried. The Orthodox Church has the same requirements, except that it will ordain as priests, although not bishops, those already married. The Church of England allows women to be priests but not bishops. We allow both to be married. We also impose restrictions on marriage after divorce, cohabitation and same-sex relationships. These touch on matters-gender, marital status and sexual orientation-that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent "protected characteristics" that can form the basis of discrimination claims.

By contrast, churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do; between what we believe and how we conduct ourselves; between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. Noble Lords may believe that Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics. But if religious freedom means anything, it must mean that those are matters for the churches and other religious organisations to determine in accordance with their own convictions. They are not matters for the law to impose. Start down that road and you will put law and conscience into inevitable collision, and that way lies ruin. As Edmund Burke said:"Bad laws are the worst sort of tyranny".

I am not determining a point of law, but seeking to restore tranquillity and a spirit of moderation, magnanimity and meeting the other half way. Aristotle, in his Nicomachean Ethics, says that magnanimity is that which is just and sometimes that which is better than justice: it corrects the law when that is deficient because of its generality.

In all that they have said, Her Majesty's Government have sought to provide assurances that they do not want to go down the road of putting the law and conscience into inevitable collision. I welcome that. However, if that is the case, the onus is on Her Majesty's Government to demonstrate why any narrowing of the provisions in existing legislation under the Sex Discrimination Act 1975 and the 2003 sexual orientation regulations needs to be made. There is no doubt that paragraph 2 of Schedule 9 to the Bill would constitute a significant narrowing of the present law, for the reasons that I set out at Second Reading. When I heard the Leader of the House describing what may be exempt, I said to myself, "My gosh, here comes a barrage of endless tribunals". The Government's Amendment 99A goes some way, but not far enough, to meeting the objections.

When your Lordships' House debated the 2003 regulations, the Minister of State at the time, the noble Lord, Lord Sainsbury of Turville-whom the noble Baroness has already quoted-said that, "we had in mind a very narrow range of employment: ministers of religion, plus a small number of posts outside the clergy, including those who exist to promote and represent religion. The words on the page reflect our intentions".-[Official Report, 17/6/03; col. 779.]

The wording of Amendment 99A is either a departure from those intentions or fails to satisfy them. We have gone from posts outside the clergy, including those who exist to promote and represent, to posts that exist only to promote or represent.

Again, the question is about preserving the status quo and about not introducing legal uncertainty. The 2003 regulations did not impose a proportionality requirement. That was a deliberate policy decision on the part of Her Majesty's Government. Now, on the eve of this debate, it is suddenly being suggested that the words in the Bill are needed to avoid legal challenges from the European Commission. This is a very puzzling claim when Ministers have insisted all along that the Bill does not narrow the exemption provided in the 2003 regulations. It is hard to see-

Lord Lester of Herne Hill: I am very sorry to interrupt the most reverend Primate, but what he has just said is not the case. The opposite is what the Minister has said, that this was not done in any way to comply with the EU Commission's opinion. This was magnanimity shown to the church.

The Archbishop of York: I am still puzzled, given that in 2004 the Government successfully defended the compatibility of the regulations in European law against a challenge from Amicus in the High Court. The judgment was given on 26 April 2004, paragraphs 88 to 128.

Noble Lords are entitled to some explanation as to why the unpublished opinion of officials reached in private in Brussels is to be preferred-that is my view-to the Government's own previous view that was sustained by a High Court judge after all the arguments had been tested in open court and a judgment produced running to some 58 pages. In the High Court, Her Majesty's Government had argued that it would not be right for courts or tribunals to make judgments about questions of doctrine. Her Majesty's Government were right to take the view in 2003, and there is no good reason for them to take a different view now that they have the High Court judgment on their side.

So why are Her Majesty's Government now dissatisfied with their own very recent handiwork? Where are the examples of actual abuses that have caused difficulties? Where are the court rulings that have shown that the law, as it is, is defective? As they say, "If it ain't broke, why fix it"? The truth is that there are none because the status quo has been working perfectly satisfactorily. The earlier balances were struck by Parliament very carefully. The right course is to leave them exactly as they are. That is what Amendments 98, 99 and 100 will achieve.

Her Majesty's Government's Amendment 99A would introduce fresh legal uncertainty with unnecessary arguments over whether "exists...to" means that promoting, representing or explaining has to be the defining characteristic of a job, rather than simply one of its necessary components. Noble Lords know where I am going; principles matter and drafting also matters. For this reason, I support the amendments of the noble Baroness, Lady O'Cathain.

For more details of the discussions, please see Hansard

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