Clause 56 - Organisations relating to religion or belief
Equality Bill [Lords]
5:15 pm
Evan Harris (Science, Non-Departmental & Cross Departmental Responsibilities; Oxford West and Abingdon, Liberal Democrat)
This is an important group of amendments because it goes into the test that needs to be applied to whether continued discrimination—discrimination after the Bill is enacted—will be considered legitimate. The matter was debated only briefly in the House of Lords because of time constraints. The amendments would amend not only clause 56, but clauses 57 and 58, which set out the circumstances in which religious organisations, charities and educational institutions are permitted to restrict their services or activities on the basis of religion or belief.
Obviously, some exceptions from the ban on discrimination are necessary, but it is important that they are not too widely drawn otherwise we would achieve very little. The Minister will be aware that previous versions of the Bill required a restriction to be imposed because it was necessary. That provision was then broadened to a restriction being imposed because it was expedient. Religious organisations objected to ''necessary'' because it seemed to be a solely objective test. Other organisations, such as the British Humanist Association, objected to ''expedient'' because it was too wide. Clearly, expediency is a huge catch-all, and I agree that such a subjective test would be outrageous because it would enable anything to continue.
I read in the Lords Hansard that even a bishop agreed that ''expedient'' was too wide a description. The Government have gone further than was necessary to meet the concerns expressed by religious and faith communities that they could not continue to discriminate in the way that they would want. That is not the first time that the Government have gone too far.
The current Bill has dropped any such test. Clause 56 states that
''subsections (3) and (4) permit a restriction only if imposed . . . by reason of or on the grounds of the purpose of the organisation, or . . . in order to avoid causing offence, on grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
In the other place, Baroness Whitaker proposed amendments similar to mine to replace ''imposed'' by ''reasonably justified''. I hope that the Government agree that ''reasonably justified'' is weaker than ''necessary''.
Baroness Scotland defended the original wording and said that it
''requires that there must be causal connection between the purposes of the organisation and the restriction. It does not, however, go so far as to require that the restriction is necessary. This test is well balanced between the strict necessity and expedience, but should be easily understood by the courts. The words proposed by my noble friend . . . would provide a test which would be less easy to apply. For that reason the wording providing by the draftsman is, in our respectful view, to be preferred.—[Official Report, House of Lords, 9 November 2005; Vol. 675, c. 676.]
I question, however, whether the word ''imposed'' is a test of reasonable justification.
I do not believe that the provision is well balanced between strict necessity and expedience, and neither does the British Humanist Association, which briefed me on this. The problem is exacerbated by ''on the grounds of'' in subsection (5)(a). Who decides what the grounds are? That will be highly subjective, and if a religious organisation claims that its purpose is based on those grounds, there is no test of reasonable justification to decide the matter.
In human rights terms, there must be objective justification for continued discrimination, and I fear that the wording in the parts of the legislation dealing with discrimination is inconsistent with what was accepted as a reasonable basis for statute in the Human Rights Act 1998, which provided that there needs to be objective justification of a potential breach of article 14 in relation to the enjoyment of other convention rights.
Subsection (5)(b) is also very weak. It says that
''subsections (3) and (4) permit a restriction only if imposed . . . in order to avoid causing offence, on the grounds of the religion or belief to which the organisation relates, to persons of that religion or belief.''
I remember debates with, I think, another Minister on the Employment Equality (Sexual Orientation) Regulations 2003 when a late exemption was added, which was contentious enough in itself, which talked about avoiding
''conflicting with the strongly held religious convictions of a significant number of the religion's followers''.
I shall talk about that when I speak to the next group of amendments. The question is whether the test is well balanced without the wording being tightened up in subsection (5)(a) or (b). I do not believe that it is, and I urge the Minister to reconsider it.
We should also consider the contrast between this provision and the positive action taken under race relations legislation to promote the interests of under-privileged people, which most members of the Committee would want, which had to be objectively proven. That was a far greater test than the continued negative discrimination for which this provision allows. On that basis, the current test should be tightened if we are to have a sensible, well balanced anti-discrimination statute, and I urge the Government to tighten it.
Baroness Scotland said in the House of Lords that she believed that the test of reasonable justification would be less easy to apply, but under clause 56 religious and other organisations are required only to state their body's purpose and to say that the restriction or discrimination was imposed on that basis. That is not a test at all. It simply allows for religious organisations to make their defence in whatever way they like without any objective justification.
I understand that the Government have tried to move from expediency to this provision, and I am grateful that they have gone that far, but there must be a more effective objective judgment. The term ''reasonably justify'' is not a new concept for courts to have to apply. The whole basis of the need to justify things objectively is well known, and a reasonable justification cannot be seen to be a whole new area of jurisprudence. As a test, it is reasonably justified, and I commend it to the Committee.