Evan Harris (Oxford West & Abingdon, Liberal Democrat)

I do not want to repeat everything that I explained previously, but where a post falls within paragraph 2(8) of schedule 9—that includes proselytising roles such as nuns and priests, any representative function and any post predominantly involved with liturgy or the teaching of theology—an organisation would be entitled to discriminate on grounds of sexual orientation. That is not the question. The question is whether, even where those requirements are not met, such organisations can seek to say that they are discriminating not on grounds of sexual orientation, but mainly on conduct. I think that I have clarified that there is such an expectation in the written evidence and elsewhere.

It is important to stress the examples given by religious organisations in the Amicus case. In his judgment in Amicus and others v. the Secretary of State, given on 26 April 2004, the honourable Mr. Justice Richards gives examples of where religious organisations are very clear—and, to their credit, they are very clear and consistent on this point—that they want to cover conduct without falling foul of the normal sexual orientation provisions. For example, in paragraph 33, he quotes Roger Smith, who was then, and might still be, head of public policy at Christian Action Research and Education, stating:

“Any inappropriate sexual activity on the part of an employee would be considered grounds for dismissal. This would include behaviour amounting to adultery from a married member of staff, and any other inappropriate sexual conduct by unmarried members of staff. This would include an unmarried employee’s sexual activity with a member of the opposite sex or with a member of the same sex.”

It is clear that the wish is to discriminate on grounds of homosexual activity. Similarly, in paragraph 34, Mr. Justice Richards cites Mr. Martin Eden, director of strategic development for the Evangelical Alliance, saying:

“We affirm God’s love and concern for humanity, including those with an orientation towards people of their own sex, but believe homoerotic sexual practice to be incompatible with His will, as revealed in scripture.”

In paragraph 35, Hilary Reeves, director and chairman of the trustees of the Christian Schools Trust, talks about teachers, who are clearly not priests:

“The teachers’ own lifestyle must be a righteous one, as defined above. That must, by definition, exclude from being a teacher in one of our schools a person whose lifestyle is known, or is reasonably believed, to include unrighteous acts as listed above.”

Included in that is

“sexual intercourse with a person other than one’s spouse outside marriage, with a close member of one’s family, or with a person of the same gender.”

Leaving aside the comparison between lawful sexual activity with someone of the same sex and the unlawful activity of incest, and the equivalence, which those organisations are entitled to make, between homosexual activity in a faithful relationship with adultery, it is clear that they wish to include such conduct as grounds for dismissal. I am asking in both of these amendments for that to have to be justified on the grounds of sexual orientation.

During the oral evidence from William Fittall of the Church of England, when he was drawn on this matter, he said that

“it is reasonable that restrictions—whether they be on marital history or whatever—can be part of the requirements.”————[Official Report, Equality Public Bill Committee, 9 June 2009; c. 69, Q127.]

That is, requirements which are imposed on people on religious grounds, the sort of requirements in schedule 9, paragraph 3. I asked him whether he meant gay people, and his answer, which can be read in columns 69 and 70, was clear that, even if it did not mean homosexuality, it did include homosexual conduct.

I have already read the ruling of Mr. Justice Richards in the previous debate, so I will not repeat that, but he makes clear in his conclusions, in paragraph 119 of his judgment, his view, which was not contested by either side, that

“the protection against discrimination on grounds of sexual orientation relates as much to the manifestation of that orientation in the form of sexual behaviour as it does to sexuality as such.”

He says that he has already mentioned that when looking generally at the fundamental rights issues in the case.

I hope, therefore, that the Committee recognises not only that there is a call for sexual conduct to be grounds for dismissal or a detrimental treatment, and to be seen as separate from sexual orientation, but that the case law is clear that that is not permitted. Furthermore, we should argue on principle as a Committee, and the House should take the view—