HL Deb 17 June 2003 vol 649 cc786-94

10.29 p.m.

Lord Sainsbury of Turville

rose to move, That the draft regulations laid before the House on 8th May be approved.

The noble Lord said: My Lords, I welcome the opportunity to introduce the religion or belief regulations and to clarify their scope. We have already debated the sexual orientation regulations. These regulations contain many of the same provisions in dealing with concepts of harassment, indirect and direct discrimination and victimisation. The regulations also contain a provision dealing with genuine occupational requirement.

There is no specific protection at the moment for those who experience discrimination at work on the grounds of their religion or belief. Members of Muslim, Christian and other communities have been dismissed, victimised and turned down for work unfairly simply because of their faith. Of those who are not religious, atheists and humanists, for example, have also experienced discrimination at work because of their beliefs or absence of them.

These regulations will make this kind of unacceptable treatment unlawful. They have a wide application. They will apply to those who offer employment and training right across England, Scotland and Wales, whatever the size of the organisation, whether in the public or private sector and whether secular or religious.

Defining an act of discrimination is as challenging now as when the Sex Discrimination and Race Relations Acts were designed in the mid-1970s. There has been no more difficult question in equality law than defining religion. One alternative would have been to list religions, but that would have been an inflexible solution. Far from providing employers with the certainty that they want, such a list would very quickly become out of date. That assumes, of course, that an exhaustive list was ever a realistic aim, even in the short term. It is not.

A broad definition of religion, in general terms, is the only workable solution. Over 70 per cent of respondents to consultation agreed. Coherence is another important issue. In preparing the legislation, we have been open to new approaches where appropriate and necessary. Our driving principle has been to ensure that the regulations should be consistent with other requirements wherever that is practical. Your Lordships' House has already considered in the Employment Equality (Sexual Orientation) Regulations some of the provisions we also intend to adopt in these regulations.

That means for concepts such as direct and indirect discrimination, the form of words used here mirrors that used in other regulations here tonight. They also follow those used in other legislation, such as the Race Relations Act. These concepts are important points for many religious communities. I do not have to remind your Lordships of some of the tragic incidents that followed September 11th where individuals were attacked because of their faith or because they associated with people of a particular faith.

For the first time in UK discrimination legislation, these regulations include explicit protection against harassment. The regulations also outlaw victimisation in much the same terms as existing equality legislation. They allow for positive action. Of course, complaints made under these regulations will mainly be considered by employment tribunals in the same way as complaints on the grounds of sex, race and disability.

As ever, there are some exceptions. It would be odd if legislation designed to outlaw religious discrimination took away the ability of organisations to have an ethos genuinely based on faith. That, no doubt, is why the directive contains a specific provision dealing expressly with churches and religious organisations. Employers with an ethos based on religion or belief will be able to recruit employees from their own faith group where they can demonstrate that this is a genuine occupational requirement. Obvious examples are that one must be Jewish to be a rabbi and Catholic to become a Catholic priest. However, we have deliberately not prescribed which posts will be covered by a genuine occupational requirement on religion.

We believe that Government are not qualified to do that. It makes more sense for employers to consider whether the functions of the post require someone to have a particular faith. But an employer must be prepared to justify its actions. It is not sufficient for an employer simply to show that it has a religious ethos. Exemption will apply only where, having regard to the ethos and to the nature of the job or context, it is a genuine occupational requirement for the post-holder to have a particular belief. Even then it must be proportionate to apply the requirement in each case. If challenged, the employer will need to defend its decisions before an employment tribunal.

This exception is focused on an individual's faith. There is nothing in these regulations which will allow organisations to discriminate against gays or lesbians or indeed to justify any act which is unlawful under the sexual orientation regulations. Of course, all employers, with a religious ethos or not, can expect their staff to uphold certain standards of conduct, but those conduct rules cannot discriminate on any other ground such as sexual orientation.

These regulations are important. They provide protection for the first time from discrimination and harassment at work on the grounds of religion or belief. I commend them to the House.

Moved, That the draft regulations laid before the House on 8th May be approved.—(Lord Sainsbury of Turville.)

Lord Wedderburn of Charlton

My Lords, I hesitate to rise again in order to speak, having detained your Lordships for 30 seconds in quite the wrong place, for which I again apologise.

My noble friend the Minister has now moved regulations on grounds which, within the bounds of his speech, are absolutely incontrovertible, but he did not address the point. The point is that the purpose of the European directive is to lay down a general framework for combating discrimination on the grounds of religion or belief. That is what the directive says, but it is not what these regulations say.

The Minister says that these regulations contain nothing against gays or lesbians. I am not surprised that he said that. The point is that they do not protect atheists or humanists who do not have a similar belief. Where did the word "similar" come from? Was it another quest to Downing Street for temporal power by the religious bodies? I ask the question in all honesty, because I genuinely do not know. Did the Archbishops or the Pope ask for the word "similar'" to be included?

I see noble Lords shaking their heads. They are happy with their faith and their religion. No one tries to attack that. Why do some noble Lords object to our saying—

Lord Brennan

My Lords, I thank the noble Lord for giving way. I raised my hand, which he astutely observed. The word "similar" in these regulations is used in relation to the quality of the belief, not its nature. The phrase "similar philosophical belief' addresses the state of mind in which someone holds that belief to the same thinking quality as a religious belief. It is not used to assimilate it in any way with a religion.

Lord Wedderburn of Charlton

My Lords, the noble Lord has his own definition. However, that is not the definition in the regulations. He, again, shakes his head. I am not prepared to have him say whether, in terms of honesty, my belief is similar to one of religious belief. I know religious people who quite genuinely and honestly say, "Your belief is nothing like ours. Your belief is outrageous and something for which you should be punished, if not here, at any rate hereafter". People have said that to me. The noble Lord does not say that to me, because he is a reasonable man and whatever he believes falls within the regulations. I am telling him that I do not fall within these draft regulations that contain the word "similar".

The noble Lord suggests that it means religious belief or some honest, strongly-held philosophical belief. Let him move an amendment. Of course, he cannot move an amendment to regulations; that is why this is done by regulation. I do not accept that the word "similar" protects everyone who is genuinely prejudiced on the grounds of honest and sincerely held belief. The noble Lord's argument does not controvert that. I know people who have been prejudiced for their atheist and humanist beliefs. I point out to the Minister that his regulations do not protect those people. If he does not fail in the courts on the sexual orientation regulations, by heaven, he will one day fail on these regulations. Is the Minister satisfied with that position?

Lord Lester of Herne Hill

My Lords, noble Lords on these Benches very much welcome the equality regulations, as we welcome the others that have already been debated. We welcome them because they remove a long-standing anomaly in our anti-discrimination law. The anomaly has always been that I, as a secular Jew, for example, am protected because Jews are regarded as an ethnic group. I am protected against discrimination because of my ethnicity. However, if I were a religious Jew, I would not be protected, and a Muslim who is regarded as not being a member of an ethnic group has, at present, no protection at all. Clearly, therefore, the time has long been ripe for legislation of this kind to combat religious discrimination, just as it has combated racial discrimination in the past.

With regard to the scope of the legislation, my strong regret relates to the anomaly that will now be created in covering employment and occupation only, because the powers conferred by the European Communities Act to proceed by way of subordinate legislation fetter the Government's ability to cover anything beyond employment and occupation. It makes absolutely no sense that 1, as a secular Jew, am protected under the Race Relations Act against discrimination in housing, education or goods and services, whereas I would not be so protected under these regulations as a religious Jew, a Muslim, a Sikh, a Christian or a member of any other faith. That is an anomaly that a future government will surely have to tackle by means of comprehensive and coherent equality legislation. I hope that my Bill has provided some encouragement for that.

I have already given rather late notice to the Minister that I would be grateful for an answer to a question I raised last week in the race relations equality debate. I asked how many of those consulted were in favour of proceeding by subordinate legislation in this area, rather than by primary legislation. I ask the question tonight because this is the last opportunity for the answer to have the slightest relevance to your Lordships' House. If that question could be answered tonight rather than later, I should be very grateful.

I, like the noble Lord, Lord Wedderburn, feel a certain bewilderment. The explanatory notes on the regulations, contrary to the view expressed by the noble Lord, Lord Brennan, say: Regulation 2 defines various terms that are used throughout the Regulations. In particular … 'religion or belief is defined as being any religion, religious belief or similar philosophical belief. This does not include any philosophical or political belief unless that belief is similar to a religious belief". Frankly, I do not understand that. In my equality Bill, I dealt with the matter by saying that it includes a lack of belief. If the regulation says that discrimination because of a lack of religious belief was part of the invidious grounds, that would comply with the European Convention on Human Rights. Of course, that would not apply to employment, but it would apply to the International Covenant on Civil and Political Rights, to the Universal Declaration on Human Rights, and the International Labour Organisation conventions.

The Minister said in his helpful introduction that atheists and agnostics are protected, but I do not believe that the explanatory notes on regulation or the way in which the regulation is worded supports that view. The Minister's statement, which might be known as a Pepper v Hart statement, shows what the Government's intention is. However, the intention is not reflected in the language of the regulation. It would be useful if the Minister in his reply could make it absolutely clear that discrimination because of a lack of religious belief was intended to be covered—so that if a humanist, an agnostic, an atheist or any other godless person or person without faith who is discriminated against is covered. In that way. the tribunal that has to interpret the regulations will at least know that that is the intention.

The directive certainly refers to "religion or belief', and belief certainly includes a lack of religious belief—in other words a philosophical or political belief as well as a religious belief. Northern Ireland legislation specifically covers discrimination on grounds not only of religious belief but of political opinion. That legislation goes wider than this. I seek reassurance from the Minister that at least the intention is to protect atheists, agnostics. rationalists, secularists, humanists and all the others who make up the ungodly and irreligious, including myself.

Baroness Miller of Hendon

My Lords, it is late and I am going to try to be very brief. We welcome these regulations, which prohibit discrimination on the grounds of religion or belief in employment or vocational training. Although I do not think there is much evidence of widespread discrimination on religious grounds in England, Scotland and Wales, I think there is a problem in Europe. In the interests of a uniform code of practice throughout the free labour market in the EC. the United Kingdom has to pass this legislation, and it is right that it should do so.

There are a couple of things that I wish to ask the Minister. The regulation refers to religion and to belief; I would be interested if he could say what is a belief, as distinct from a religious belief. That comes to the heart of the matter. Is there any difference? In his reply, will the Minister define both religion and belief? If he cannot I will understand because draftsmen run away from that and I am not sure that it helps too much if we cannot give a correct answer, or a total answer.

I apologise to the Minister for not having given him notice of my next point and I am not expecting an answer tonight, but I should like some information on it if possible, so perhaps he will write to me. EU Directive 2000/78/EC, on which this present set of regulations is founded, says at Article 4.2. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the rights of churches or other public or private organisations, the ethos of which is based on religion or belief … to require individuals working for them to act in good faith and with loyalty to the organisation's ethos. Note the words "churches" and other "public" and "private organisations". The directive, it would seem, permits private organisations to be exempt in certain appropriate cases. The question is whether the regulations give a degree of exemption to private commercial concerns, as distinct from the Churches or what are described as "private organisations". The wording of the regulation could possibly be construed as only meaning, for example, organisations such as religious charities, environmental charities and so on. To illustrate that point, I have received a joint letter from three commercial companies that said, We are believers in the Lord Jesus. known … as the Brethren. The letter continues, We operate small family orientated businesses where we are committed to maintain righteousness, truth, integrity and such moral standards as are set out in the Holy Scriptures. We have a company ethos which sets out what is expected of all who work in our business … expecting all who work with us to …he loyal to that ethos … As Christians we believe that all sexual activity outside marriage…is against the teachings of the Holy Bible and we feel the need to protect our … workplaces from anyone who because of their lifestyle or beliefs would tend to corrupt others. I imagine the majority of people do not approve of the fundamentalist teachings of the Brethren, but one would have to say that they are based on their sincerely held beliefs. That is the point. Will the Minister, at a convenient moment for him to write, confirm whether these companies will, or will not, be forced to employ people who they consider do not live up to their very high moral standards? Will he confirm that the organisations that may enjoy exemption on genuine grounds include ordinary commercial concerns? I emphasise the word "genuine".

We welcome these regulations and would not dream of opposing them.

Lord Brennan

My Lords, I raise a particular problem about these regulations while otherwise welcoming them very warmly. The problem relates to Regulation 20, which rightly applies the regulations to institutions of further and higher education. The problem arises as to what is comprised by that phrase, institutions of further and higher education". Regulation 17 expressly excludes schools, but there exist in this country 16 Catholic sixth-form colleges, which ordinary folk would call schools. However, for funding purposes various statutory provisions in recent years have assigned sixth-form colleges into the category of further education. So by dint of one entirely discrete legislative provenance those sixth-form colleges on the face of these regulations are caught by Regulation 20, by its use of the phrase "further education".

That is an anomaly that needs some attention because the directive seeks to protect employment opportunity. It uses the phrase "vocational training" obviously in the sense of tertiary and higher education at that level. The anomaly is accentuated by the fact that under Section 30 of the Further and Higher Education Act 1992, and a statutory instrument made under it in 2001, these sixth-form colleges are required by the legislation to operate in accordance with their Catholic trust deed; in other words, to provide places for Catholics. But this regulation would make that legislative intent on its face not tenable, or even illegal.

That is a significant problem because the 16 schools to which I referred are situated mostly in areas of significant deprivation and need, and most of them are successful. In the provision that they make for education only a small amount of what they provide is what might be termed "vocational"—craftwork and so on. It is therefore the position that by the combination of all those rather unusual circumstances the regulations catch a set of schools which can hardly have been regarded as the intent of the directive. Those problems have been—

Lord Wedderburn of Charlton

My Lords, could the noble Lord add to our knowledge on this matter? May I say that in asking that question I have very great sympathy with the case that he is advancing? Could he say whether these 16 bodies are supported by public funds?

Lord Brennan

My Lords, they come within the funding arrangements of various education Acts which have been passed by this House. But the fact is that in most of them the balance between Catholic and non-Catholic is about—I say "about" in a broad sense—55 per cent Catholic, 45 per cent non-Catholic. They are seeking to meet a local need as well as preserving to that small extent places for those of the Catholic faith.

Representatives of the Catholic Church have met various representatives of the ministry and the problem has been looked at afresh. It clearly seems to represent an anomaly. I know that the Government are considering the matter and I have made these points simply to place them on the record should we ever have to revisit this question.

Lord Sainsbury of Turville

My Lords, the definition of "religion" under Regulation 2 is not a very precise one. It simply states: In these Regulations, 'religion or belief' means any religion, religious belief, or similar philosophical belief". It is clearly the intention that where people have strongly held views, which include humanism, or atheism or agnosticism, they would be covered under the phrase "or similar philosophical belief".

The noble Lord, Lord Lester, referred to his Parliamentary Question. I believe that was the Question in which he asked Her Majesty's Government to what extent the submissions received on the draft equality regulations had argued for the use of primary rather than secondary legislation or for a single equality Act extending beyond the employment field. I am sorry that the reply did not reach the noble Lord. I rescued it from the burning embers of the Lord Chancellor's Office. It states: Of the 620 responses to Equality and Diversity: The Way Ahead, published in October 2002,18 or 3 per cent said they would have preferred the Government to use primary legislation rather than secondary legislation as a way of implementing the employment and race directives. Sixteen responses, 3 per cent, suggested that new legislation on sexual orientation, religion and age should extend beyond the field of employment. In both cases the responses came from unions, faith groups and other representative bodies. One hundred and six—39 per cent—respondents to the parallel consultation on the future of Great Britain's equality institutions, Equality and Diversity: Making it Happen, argued for measures to harmonise anti-discrimination legislation, in particular through a single equality Act". I will sign that answer off tomorrow and let the noble Lord have it.

Lord Lester of Herne Hill

My Lords, of course, quality as well as quantity matters.

Lord Sainsbury of Turville

My Lords, so far as the questions raised by the noble Baroness, Lady Miller, and the noble Lord, Lord Brennan, are concerned, I think it best if I follow the points up and give a considered answer by letter tomorrow. I commend the regulations to the House.