Employment Equality (Sexual Orientation) Regulations 2003

– in the House of Lords at 8:09 pm on 17th June 2003.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat 8:09 pm, 17th June 2003

rose to move, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, the Motion raises an issue of law. The Government seek parliamentary approval of the draft regulations to give effect to the obligations imposed on the United Kingdom by the EC Framework Directive 2000/78/EC. Because the Government have chosen to proceed by way of subordinate rather than primary legislation, the power to make those regulations is conferred by Section 2(2) of the European Communities Act 1972. That is a power to transpose the directive faithfully into our domestic law. If the regulations fail to do so because they would allow an employer to discriminate on grounds of sexual orientation in circumstances not permitted by the directive, they are beyond the powers conferred by Parliament in Section 2(2) and are unlawful.

It is Parliament's duty as national lawmaker to legislate in accordance with Section 2(2) of the 1972 Act and the directive. It is the Government's duty to introduce legislation that they consider to be fully compatible with Section 2(2) and the directive.

The legal advice given the Government is confidential. However, Parliament has the great benefit of an independent scrutiny committee—the Joint Select Committee on Statutory Instruments—one of whose main tasks is to draw to the special attention of each House its opinion that there appears to be a doubt whether delegated legislation for which parliamentary approval is being sought is intra vires or that it appears to make some unusual or unexpected use of the powers conferred by the statute under which it is made. Before doing so, the committee gives the Government the opportunity to explain their position. The committee receives not only expert advice but the most expert legal advice of senior counsel. The committee is a vital safeguard and the executive and legislative arms of government would be wise to heed the committee's advice.

Speaking for myself, I would not have pursued this Motion if the committee had been satisfied that the draft regulations were intra vires. However, last Friday, the committee determined that the special attention of both Houses should be drawn to them on a number of grounds. The committee's main concerns are with Regulation 7(3), which is the subject of my Motion. Before I address those concerns and explain why the House should give effect to them by supporting the Motion, it may be helpful to set the context.

Article 4(1) of the EC Framework Directive allows in very limited circumstances that a difference of treatment may be justified when a characteristic related to sexual orientation constitutes a,

"genuine and determining occupational requirement, when the objective is legitimate and the requirement is proportionate".

That is known as the GOR—genuine occupational requirement—exception.

In practice that means that an employer who wishes to impose a requirement relating to sexuality—for example, that a person working with lesbian women should be a lesbian, or that a person working with gay men should be gay—must demonstrate that being lesbian or gay is essential for the kind of work which is to be undertaken; that there are good reasons for imposing the requirement; and that the requirement is an appropriate one to apply given those reasons. The requirements apply to applicants for employment as well as to existing employees. The burden of proof lies with the employer.

Regulation 7 deals with the genuine occupational requirement exception, though it has a very strange heading. I have asked the Minister whether he can explain the heading because the whole of the vice of Regulation 7(3) may be explained by the use of the word "etc". The heading refers to, "genuine occupational requirements etc". I would like to know what is meant by "etc" because all that Regulation 7 is supposed to be dealing with is genuine occupational requirements. It would be helpful to know what that short Latin phrase means.

Regulation 7(1) sets out the circumstances in which the anti-discrimination provisions set out in Regulation 6 do not apply; and Regulation 7(2) sets out, with some minor variations, the genuinely occupational requirement exception. The problem lies not with the GOR exception itself in Regulation 7(2), although it is very wide. The problem arises in the approach taken in the context of religious organisations in the further exception that has been added in Regulation 7(3). It is with this that the Joint Committee has been particularly concerned.

Regulation 7(3) concerns employment for the purposes of an organised religion. It does not have a genuine occupational requirement provision. Instead it creates a broader exception which allows the employer to impose a requirement relating to a person's sexuality either in order to comply with the doctrines of the religion, or because of the nature of the employment and its context, to avoid conflicting with what are described as the,

"strongly held convictions of a significant number of the religion's followers".

The paragraph further provides that the exception applies if the potential employee does not meet the requirement, or if on reasonable grounds, the employer is not satisfied that the requirement is met. It is, I think, derived from a provision for which I was partly responsible in ancient history in the Sex Discrimination Act, 1975, long before doctrines such as proportionality or the Equal Treatment Directive were in force.

At paragraph 1.17 of its report, the committee concluded that there is doubt about the compatibility of Regulation 7(3) with the directive. The committee reported that there is therefore a doubt as to whether Regulation 7(3) is intra vires, in other words, that there is any power in Parliament to enact it. In paragraph 1.15 it explains its reasoning in this way. The committee stated:

"Against this background, the committee is not persuaded that the only acts permitted by Regulation 7(3) are those permitted by Article 4.1 of the Directive. Organised religions vary considerably in their structure; the identity of the employer will vary according to the structure of the religion. It seems to the committee wholly within the bounds of possibility that, for example, an employer considering employing a custodian who would, as part of his or her duties, have care of religious artefacts might determine not to employ a worker solely on a ground related to his or her sexual orientation in order to avoid conflicting with the strongly held religious beliefs of a significant number of the religion's followers. Even if those beliefs were held only by a minority of the religion's followers, and by those located at only one of the several places where the post holder might be required to work, the discrimination would seem to the committee apparently to be allowed by Regulation 7(3)".

The committee went on:

"Yet it is open to question whether either the intention or effect of Article 4.1 [of the Directive] is to allow the personal beliefs, (even of a majority within an organisation) to determine the position, on the basis that they are part of the context in which the work is to be carried out and, in the view of the employer the factor is decisive. Even if a characteristic of the worker could be said to be a 'genuine and determining occupational requirement' in these circumstances there seems to the committee to be a doubt as to whether the requirement is proportionate as the Directive requires".

That is expressed in the diplomatic language customary to our committees, which means they think that as it stands the regulation exception is legally dubious.

The Select Committee explained that Regulation 7(3)—I now refer to paragraph 1.11 of its report—may,

"permit difference of treatment based on characteristics relating to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate".

The committee further explained that Regulation 7(3),

"might allow the employer to impose a discriminatory requirement on an employee or prospective employee whose functions or proposed functions did not promote the core activities of the organised religion concerned".

It is, as the Joint Committee explains, important that Article 4 of the directive be construed strictly, and that the regulations do not provide for exceptions which only a very broad interpretation would permit. It is surely wrong as a matter of principle and, as the Joint Committee explains, of dubious legality, that a person in an administrative or ancillary role within a religious organisation should be excluded from employment because they do, or do not, have a particular sexual orientation. To require a person applying for the position of a church cleaner to be heterosexual when that has absolutely nothing to do with whether he or she can wield a mop and bucket not only flies in the face of reason, but is contrary to the express terms of the directive. It is not just cleaners but librarians and a wide variety of others who will be affected—in both paid and unpaid, voluntary work.

The committee went on at paragraph 1.20 of the report to conclude that the position of those affected by Regulation 7(2) and (3) is uncertain. It is not only the possibility that the regulations are ultra vires which should concern this House but that they are unclear on their face. That is a proposition which I should have thought would appeal to all sides of the House—law should be certain both on its face and in its effect. Regulation 7(3) is neither. It is unclear which employers will be able to take advantage of the exemption—churches certainly, religiously inspired hospices, possibly—and which employees will be subject to it—ministers of religion certainly, church cleaners, possibly. This is a profoundly unsatisfactory state of affairs which will lead to expensive and distressing litigation—litigation which will be particularly distressing as it will inevitably involve a public analysis of the very private business of a person's sexuality.

The Government may argue—I hope that they do not—that the lack of clarity in the regulations could be remedied by departmental guidance. That would be highly unsatisfactory. Not only would it be an implicit admission that the regulations are not themselves sufficiently clear—which they should be—but such guidance would not be binding on courts and tribunals. It would in fact be contrary to the principle of legal certainty.

My final substantive reason for pursuing the Motion is also one to which the Joint Committee has drawn the attention of this House in paragraph 1.25 of its report. The committee considered that, in the light of Regulation 7(3), the department would have been prudent to undertake further consultation with representatives of persons likely to be adversely affected by Regulation 7(3) before the regulations were laid before Parliament.

When the original version of the regulations was published for consultation purposes in October 2002, there was no Regulation 7(3). It is reasonable to presume, therefore, that the drafters of the regulations considered that the much narrower Regulation 7(2) provided the only legitimate form of exception. Regulation 7(3) appeared only after the consultation and was included expressly to meet the concerns of those who argued that the regulations should not seek to meddle with matters of religious doctrine. There appears to have been no attempt to consult further with those who will be adversely affected by the inclusion of Regulation 7(3) even though, as officials who gave evidence to the Joint Committee admitted, there would be such people.

I have asked the Minister to deal in his reply with a Question that I tabled for Written Answer asking which of the organisations that made the representations about the draft regulations supported the amendment to Regulation 7 to include the obnoxious Regulation 7(3). The default in consultation is even more regrettable when, as I have indicated and as the Joint Committee has explained, that regulation is unclear in its terms and effect.

Those of us who had strong doubts about the validity of the exception in Regulation 7(3), because of its vagueness and over-breadth, were not at all surprised by the unanimous conclusions of the Joint Committee. We hoped and expected that the Government would reconsider and lay fresh draft regulations before Parliament that followed their original version, on which there was extensive public consultation. We are dismayed that the Government have not done so.

Unless we are able to persuade the Government in this debate, what will be the practical consequences? I shall deal with them briefly. The regulations will become law. They will bear no brand of illegality on their forehead. Unless and until legal proceedings are brought to establish the cause of invalidity and to have Regulation 7(3) annulled, it will remain effective as a sweepingly broad exemption clause apparently permitting a religious body to refuse to employ not a priest but a cleaner or messenger because of their sexuality. In other words, Regulation 7(3) will encourage unlawful discrimination even though, as I am sure that we shall be told, that is not the Government's intention.

I have no doubt—I stake my professional judgment on it—that the courts would eventually decide that Regulation 7(3) was contrary to the principles of legal certainty and proportionality. Either the regulation will be struck down, or it will be drastically read down. But why on earth is it necessary to have recourse to the costly and protracted procedures of challenge in the courts, when it is so easy in this case for the Government and Parliament to enact legislation that avoids the vices of undue vagueness and over-breadth?

I believe that the answer to the puzzle of why the Government have not moved, in the light of the Joint Committee report, is a mixture of confused thought and political obstinacy. The Government and—I am sorry to have to say it—especially the Prime Minister and his advisers were persuaded at the end of the consultation by some religious bodies, including some even in the Church of England, I regret to say, to widen Regulation 7(3) even though it was both unnecessary and unlawful. It was unnecessary because the original version of Regulation 7 contained sufficiently wide exceptions, and unlawful because it authorised sexual orientation discrimination in circumstances not required by the needs of the particular post or the context in which the jobholder would work.

I very much hope that the Minister, for whom I have the utmost respect and feel sadness that he has to do as he is doing, will be able to tell the House that the Government have decided that their first thoughts are to be preferred to their second. If not, it will be our intention on these Benches to seek the opinion of the House, still hoping to make a law that will not mislead or be an abuse of the powers conferred in the 1972 Act. If we are unable to muster sufficient support against the Government's whipping, especially at this late hour, I predict with the utmost solemnity—one does not lightly do so in public—as a practising lawyer of almost 40 years' standing that the Government will face ultimate defeat and humiliation in the courts after costly and effective litigation.

Moved, That this House invites Her Majesty's Government to withdraw the draft Employment Equality (Sexual Orientation) Regulations 2003 and to lay new regulations amending Regulation 7(3) so as to conform with the EC Framework Directive 2000/78/EC.—(Lord Lester of Herne Hill.)


what is the basic rationale behind the sexual orientation regulations 2003?
Who initiated the regulations (persons and organisations?)
Do you not think the regulations go far beyond and outside human rights, as homosexuality is a choice and not inborn?
The regulations are based on wrong information and pro-gay propaganda. This being so, does it not mean the regulations are bad law that should therefore be repealed?
Even if you do not agree to it being bad law, do you agree in principle that any law based on corrupt data should be repealed?

Submitted by Barry Napier

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

My Lords, I believe that the regulations are intended to put into effect the agreed EU directive banning discrimination in employment on several grounds, including religion or belief and sexual orientation. I have in the past attempted to introduce Private Member's Bills aimed at outlawing discrimination in employment relating to sexual orientation but, for various reasons, those have not succeeded. With these regulations, it seemed that we were in the process of correcting what many of us saw as a continuing injustice. However, I have been lobbied by my own union, Amicus, because it feels that the exemptions proposed could make things worse for gay and lesbian people in religious organisations. As I understand it, there are major exclusions which would exclude faith organisations from having to comply. Would this mean that someone who is not a practising member of a given faith could be rejected for a job? Could a lesbian or gay employee be discriminated against in the event of co-religionists taking exception to his or her continued employment, simply because it offended their religious susceptibilities? Surely that would not be acceptable. I cannot believe that that was the Government's intention.

Further, can employers deny a same-sex partner access to a benefit such as a survivor's benefit in an occupational pension scheme if they specify that this benefit is restricted to married partners only? We have already debated this injustice in the House. There have been some really awful cases in which one partner to a long-term relationship dies, and the other does not benefit from a survivor's pension. The surviving partner also risks losing the home in which they lived, because inheritance tax, which would not apply to a married couple, must be paid. I had hoped that these regulations would put right some of these injustices, but this does not appear to be the case.

I received briefing from several organisations other than my own union. The Law Society says:

"In the absence of any limiting words in Regulation 7(3)(b)(I), we consider that a church which asserts, as a matter of doctrine, that homosexuality is a sin will be able to deny employment to homosexuals in any capacity whatever, without reference to the nature of the job. This is hard to reconcile with the purpose of the Directive".

The Joint Committee on Statutory Instruments—the text of whose report has been explained to us in some detail this evening by the noble Lord, Lord Lester—clearly believes that Regulation 7(3) breaches the European Directive.

I support the Motion of the noble Lord, Lord Lester, and I hope that in the light of this debate, the Government will feel inclined to accept what he has said. We cannot leave interpretation to tribunals. Regulations must be clear.

Photo of Lord Pilkington of Oxenford Lord Pilkington of Oxenford Conservative 8:30 pm, 17th June 2003

My Lords, there is a fundamental problem. There are human rights, and there are corporate rights. Everyone has supported the idea that faith communities can choose the people they employ. In Hitler's Germany, he destroyed faith communities, and the state decided who they could employ. It is a fundamental tenet of modern democracy that the communities within the state, be they trade unions or Churches, can decide whom to admit. The state does not decide that. My Lords, you may disagree with them; you may find them a narrow, funny lot—but it is their right. The noble Baroness sat on the European committee, as I did, together with many European Union members. England is not alone in this. A lot of other people have said that they are not prepared to accept that a faith community should be dictated to by the state—by people who have no commitment to their religion. I do not know what the religion of the noble Lord, Lord Lester, is, but I do not think that it is mine.

It is crucial that we allow derogation in this matter. It is being allowed in Germany, Ireland and a lot of other countries. Why should we not do it? People do not have to be cleaners in the Anglican church or the Jewish synagogue. You may think that they are bizarre or from the Planet Zor, but they are entitled. If we do not watch out, we will stray into the secularisation seen in France in the late 19th century, when the state started to dictate to the Church what it could do. They could not have monks or things like that.

Therefore, it is terribly important that the Government stand firm on this issue, together with the governments of a number of European Union countries. I do not have the advantage of the research team of the noble Lord, Lord Lester, so I cannot furnish my argument with quotes, but corporations within the state have a fundamental right to their own identity and we must support that.

Photo of The Bishop of Blackburn The Bishop of Blackburn Bishop

My Lords, I thank the Government and the noble Lord, Lord Sainsbury, for tabling the regulations and the noble Lord, Lord Lester, for his untiring work on behalf of human rights. The Church of England, in common with many other Churches and faith communities in our country, strongly supports the creation of a legal framework to safeguard basic rights and to promote dignity, equality and respect for all members of society. The law cannot by itself change attitudes, but as we have seen in the past with legislation against race and gender discrimination, it can helpfully set the boundaries for acceptable behaviour.

It is an undoubted anomaly that discrimination against Jews and Sikhs has up to now been unlawful because they are ethnic groups as well as a religious community, whereas discrimination against Muslims, Hindus or Christians has not been. It is also wrong that prejudiced views about sexual orientation have been able to deny people employment. The two sets of regulations before us tonight address those problems and I welcome them.

They both, inevitably, raise particular issues for faith communities in their own internal affairs. That is not a code for saying that we seek special treatment. It is simply an echo of the assertion of paragraph 24 of the preamble of the European directive in relation to the status of Churches, religious associations and communities. That paragraph continues:

"With this in view, Member States may maintain or lay down specific provisions on genuine, legitimate and justified occupational requirements which might be required for carrying out an occupational activity".

To put it more simply, the directive recognises that Churches and faith communities need to maintain their character and identity and sometimes to be able to set requirements which should not arise in the case of a secular employer. In respect of the religious discrimination regulations, that much is surely common ground. Religious organisations self-evidently need to be able to safeguard their identity and ethos without the fear of constant litigation which is such a feature of our modern society. Where, for example, being a Christian, a Muslim or a Mormon is a genuine occupational requirement, the regulations now permit what in other circumstances would constitute unlawful discrimination.

In relation to sexual orientation, the arguments, unsurprisingly, become more contentious. There has been a good deal of misrepresentation in the press about the position of a wide range of faith communities, to the extent of it suggesting that we are keen to dismiss gay clergy and staff. Perhaps I may briefly explain why the original draft regulations published last October caused much concern and why we believe that the new regulations are better and more compatible with the directive. It can be expressed very simply. Churches and faith communities need to retain a broad measure of freedom to determine their own requirements in relation to the sexual conduct—not orientation—of those who wish to serve or represent them. What those requirements should be is already a matter of lively debate in many faith communities as we ponder how to respond to the rapid changes in attitudes and ethics that our society has witnessed in recent decades. But that debate is surely something which the Church of England, the Roman Catholic Church, the black majority churches, the Muslims and the very many other faith communities in our diverse society must each be allowed to have in their own way. I urge the House to recognise that there are genuine issues of religious liberty here. If that is accepted the question is how best to safeguard that liberty in the way the noble Lord, Lord Pilkington, has just described, while providing proper protection against the discrimination which gay and lesbian people have had to endure.

A difficulty immediately arises as a result of the varying ways in which sexual orientation can be used. As regards the Church of England—and I believe that this will be true for many of the Christian denominations and other faiths—there are no circumstances in which we would wish to be able to discriminate against people on the grounds of their orientation as such. I feel like repeating that.

We do not have posts or orders where there is a requirement to be heterosexual, or indeed homosexual. But we do have some posts and orders where, irrespective of sexual orientation, be it heterosexual or homosexual, the requirement remains for marriage or abstinence. Our difficulty is that under the regulations that sort of requirement would be open to challenge as unlawful discrimination if it were not for Regulation 7(3). The tribunals are unlikely to recognise a clear distinction between orientation and behaviour manifesting orientation. That is the difficulty.

Regulation 7(2) by itself does not give the protection we need because it applies only where being of a particular orientation is an occupational requirement. All of our posts in the Church of England are open to people of any orientation provided that they are prepared to observe the disciplines of the Church where that is required. We have no intention of discriminating against anyone simply because of their sexual orientation.

It was because of the inadequacy, as it was perceived, of Regulation 7(2) that the Archbishops Council of the Church of England, together with many other faith groups, expressed such concern at the earlier draft regulations. We welcome the way in which the Government have listened and responded. It is not that, as a Member of another place said, Downing Street caved in to the prejudices of extreme religious organisations. I doubt even the most unfriendly critic of the Church of England could level that description against it—an extreme religious organisation.

Finally and briefly I say a word about the doubt raised by the Joint Committee on Statutory Instruments to which the noble Lord, Lord Lester, has referred as regards the lawfulness of Regulation 7(3) under the directive. Ultimately, that is a matter for the courts who would no doubt have to struggle to reconcile some of the internal inconsistencies within the directive. On the basis of advice from our standing counsel, Sir Anthony Hammond QC, in our view Regulation 7(3) fully meets the requirements of Article 4(1) of the directive.

In particular the regulation is confined to employment for purposes of an organised religion. It fulfils a legitimate objective—protecting the right to religious freedom—and it is proportionate. It is emphatically not about pandering to prejudices. The provision comes into play only where doctrine and strongly held religious convictions are at stake. I cannot believe that that religious doctrine comes into play in the employment of cleaners or librarians—we do not employ many of the latter in the Diocese of Blackburn: they would be a very rare category indeed.

I am sure that the courts and tribunals will be able to see through spurious defences. Not to provide protection for genuine religious convictions would risk the law engaging in a collision course against the consciences of many who take a conservative view, with a small "c", on sexual ethics. That would be a very worrying development and not one that I believe would prove beneficial in the end to these regulations or to the well-being of the diversity, culture and religion of our nation.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, can the right reverend Prelate help me on one matter? Where in Regulation 7(3) are words of limitation which require the principle of proportionality to be applied or require that the discrimination should only be in relation to what is a genuine occupational requirement?

Photo of The Bishop of Blackburn The Bishop of Blackburn Bishop 8:45 pm, 17th June 2003

My Lords, an amateur is here in conflict with a lawyer. For me the importance of the matter is to comply with the doctrines of religion and religious convictions. That is the main point for us. I was going on to say before the noble Lord intervened that the present drafting would not have been exactly our choice. However, it attempts to strike a fair balance between the rights of individuals and the freedom of faith communities to apply their own beliefs and convictions in relation to those who serve and represent them .

I urge the House to resist the Motion and to approve both sets of regulations.

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, surely the noble Baroness is not winding up?

Photo of Baroness Miller of Hendon Baroness Miller of Hendon Conservative

My Lords, no, I intended to speak—I am not winding up. I would never upset the noble Lord, Lord Avebury.

The Motion is to withdraw the first of the two regulations that we are considering this evening. The regulations stem from when the Government decided to sign up to Article 13 of the Treaty of Amsterdam in 1997. For the first time that gave the EU power to legislate in the area of religious and sexual orientation discrimination. Prior to that it could not happen. The previous Conservative government consistently vetoed that. Giving power to the EU to dictate national Government policy in such a sensitive area was always bound to be a minefield. It has proved to be so. One of the first acts of the Labour Government in 1997 was to sign up to Article 13. Three years later, in October 2000 they agreed to the EU Council directive that established a general framework for equal treatment in employment.

Under pressure from religious groups at home, and led by the Irish, the Government were able to obtain concessions in the directive to protect religion. Those concessions were not as wide-ranging as could have been wished for, but they went some way towards recognising the different considerations that apply to religious employers.

We now have these regulations that are intended to implement the directive. Given that the Government have helped to obtain the concessions for religious groups, it is disappointing that they have not made the religious exemptions as clear and as firm as they might have. As with all badly drafted laws, as the noble Lord, Lord Lester, has said, it will take much litigation to establish the boundaries of religious protection. That is as true in the religion regulations—the next matter that we shall debate—as it is in the sexual orientation regulations. We would not have started from here if all of that had not happened. However, we are here.

I have listened carefully to the arguments advanced by the noble Lord, Lord Lester of Herne Hill, inviting your Lordships to disapprove of the sexual orientation regulations. I have also had the advantage of studying in advance the letter that he wrote to my noble friend Lord Cope of Berkeley summarising those arguments. I have some sympathy for the strictures about the adequacy, or indeed the suitability, of the regulations. However, these Benches cannot support the rejection of the regulations, which, if rejected, would strip out at least the religious exemptions from the orientation regulations. Despite their shortcomings, to reject the regulations would be akin to throwing the baby out with the bath water. Without them there would be nothing whatever to protect the very people that the regulations are intended to protect.

The nub of the noble Lord's argument is in relation to Regulation 7. Paragraphs (1) and (2) enable an employer, in effect, to discriminate in any case where, as the noble Lord explained, the employee's sexual orientation is a genuine and determining occupational requirement. In his letter to my noble friend, the noble Lord, Lord Lester, conceded that Regulations 7(1) and 7(2) were uncontroversial and squarely within the language of the directive.

However, it is Regulation 7(3) which is objected to by the noble Lord, Lord Lester. That paragraph was not included in the original draft regulations circulated for consultation last October. I wonder at whose behest and on the basis of what representations it was added. Regulation 7(3) permits what in effect amounts to discrimination if the employer is an organised religion and the discrimination as to sexual orientation is to comply with the doctrines of that religion or to avoid conflict with the strongly held beliefs of a significant number of that religion's followers.

In the brief which many of your Lordships undoubtedly will have received, the Law Society asked whether a charity connected to an organised religion would enjoy the same exemption. Perhaps the Minister could tell the House when he replies. What a fertile ground for litigation that phraseology contains in defining an organised religion, the doctrines of that religion, the strongly held beliefs of followers and, last but not least, how many followers make a significant number. What is an organised religion? Will the courts or, worse still, as the noble Baroness suggested, employment tribunals, have to decide on the ecclesiastical purity of some of the weird and wonderful sects that thrive in our community? I name no names for fear of giving offence, but your Lordships could each undoubtedly think of a so-called religious movement which cannot really be dignified with the name of a religion. What are their beliefs, and how strong is "strongly held"? What is a significant number? A significant number of Catholics will be substantially more than a significant number of the Seventh-Day Adventists, or is the number to be gauged in percentage terms, in which case should the percentage not be defined in the regulation which should refer to at least "x" per cent of the religion's followers?

The objection by the noble Lord, Lord Lester—to reduce it, if I may, in my words to its simplest terms—is that it would permit discrimination not only on the grounds of the sexual orientation of, for example, clergy and teachers but also on the grounds of the sexual orientation of an office clerk or, as he said, the cleaning lady or caretaker who may never come into contact with students or worshippers in the course of their duties.

I am certain that every Member of your Lordships' House would strongly disapprove of what might be described as bigotry and unreasonable, indeed, unreasoning, blind prejudice. However, those of us—I include myself in this number—who wish to protect the rights of various minorities, in this case those of homosexual orientation, must not at the same time overlook the rights of other members of the community. There are those who find homosexuality objectionable. I certainly do not include myself or, indeed, I think, anyone in this House. Although I am a very religious person I certainly would not accept the word "abomination", which is used in Leviticus. I think that is quite disgraceful.

We may not agree with such a prejudiced view but—this is the important part—as the regulation carefully stipulates that the employer's belief must be reasonable, I believe that there is both protection for the employee and a quite difficult defence for the employer. Those same people may similarly want to object and to discriminate against persons who live together, in the very quaint Victorian phrase, "without the benefit of clergy".

Paradoxically, the regulations prohibit discrimination on the grounds of the sexual orientation of an employee but do not prohibit discrimination on the grounds that the employee is living with a member of the opposite sex to whom he or she is not married. That in itself is discriminatory, but typical of the biased way in which this type of anti-discrimination legislation is framed. All employees are equal but some are more equal than others.

A few moments ago I referred to fertile grounds for litigation in defining the operation of Regulation 7. If we go by the precedent of previous anti-discriminatory regulations, I fear that these regulations, regardless of what I am sure are their good intentions, will land employers with claims for substantial compensation because of actions over which they have absolutely no control. The same Law Society brief very strongly shares that view.

Leaving aside the religious defence, if a fellow employee refuses to work with a colleague because of his sexual orientation, or if that employee in the course of an argument uses abusive language about the other employee's sexual orientation, then there is little doubt but that a claim for damages against the employer will follow. There is a difference in principle between discrimination on the grounds of a person's sex or race and this new type of discrimination for which we are being asked to legislate today. An employer would have no doubt about a employee's sex—at least, I hope he would not—or, in most cases, his or her race; but there would be no way that an employer could be certain of the sexual orientation of an employee or a potential employee. The same would apply to his or her religion. We could therefore find a person being refused employment or dismissed on perfectly normal grounds, and then launching a claim that it was a case of discrimination on the grounds of his sexual orientation—of which the employer was not even aware.

Your Lordships will not have overlooked the fact that under this type of legislation, once the employee has established a mildly plausible case of the possibility of discrimination, that employer is faced with the almost impossible task of proving the negative. In following these directives, we have imported the concept of guilty until proved innocent.

To sum up, we find these regulations to be poorly and ambiguously drafted but we think that they are the best of a bad job, and certainly the best that the Government have offered to us.

The noble Lord, Lord Lester, has expressed the opinion that Regulation 7(3) is ultra vires the European Communities Act. I certainly would not dream of arguing a point of law with the noble Lord. There is another law, however, called Duggan's Law, which says that for every expert opinion there is an equal and opposite opinion. In this case, the opposite opinion is expressed by Professor Leigh of the University of Durham, whom I am quite sure the noble Lord, Lord Lester, recognises as a leading human rights academic, as well as being an adviser to governments at home and abroad. He argues:

"It is overly dogmatic to argue, as the Joint Committee has, that Regulation 7(3) is ultra vires the European Communities Act. The Government has sought a compromise between two strongly held positions. In doing so, it has followed models of United Kingdom legislation already in force, notably, the Sex Discrimination Act 1975 and the Sex Discrimination (Gender Reassignment) Regulations 1999".

He continues:

"Similar exceptions from sexual orientation discrimination laws for religious bodies can be found the whole world over, from states in Australia and the United States of America and Ireland".

Deplorable as discrimination on grounds of sexual orientation undoubtedly is, respect must be given to the genuinely and sincerely held beliefs of others. Surely we should not trample over those rights on account of an academic, technical argument about the validity of the exception.

In the circumstances, if the noble Lord, Lord Lester, presses his Motion to a Division—he said that he probably would—we will not be able to support him. Similarly, and with equal reluctance, we will support the passage of these regulations. We very much hope that the adverse consequences about which I have spoken, and which the Law Society fears, will not materialise.

I cannot do better than to conclude by quoting from a brief that undoubtedly many noble Lords received from the Evangelical Alliance. It states:

"Although we recognise that the Regulations as laid before may cause some difficulties to faith groups across the UK in coming years, we consider that the Sexual Orientation Regulations are the best we can hope for and expect at this present time".

I agree.

Photo of Baroness Crawley Baroness Crawley Government Whip, Baroness in Waiting (HM Household) (Whip)

My Lords, we have had a contribution from the Bishops' Benches, and I am sure that noble Lords look forward to hearing from another Member on those Benches, but perhaps we could speak in some order. I call on my noble friend Lord Alli, followed by the noble Lord, Lord Avebury, and then the right reverend Prelate the Bishop of Worcester.

Photo of Lord Alli Lord Alli Labour

My Lords, I support the Motion of the noble Lord, Lord Lester, to disapprove these regulations. I sincerely urge the Government to withdraw them and to think again. The noble Lord, Lord Lester, set out very clearly and in detail what he and others consider are the faults of the regulations. My principal concern, and the one that I will address, is the role of the Church of England and other organised religions in this debate.

I find it impossible to believe that the Government—one committed to fairness and equality—should seek to allow the continued discrimination against gay men and women if those who seek to discriminate against them believe in God. What an irony: if you are God-fearing, you can weed out, discriminate and persecute gay men and women, and, if you are not, you cannot. Frankly, the exceptions in Regulation 7(3) are a joke. They make a mockery of equality legislation. My noble friends on the Front Bench should seriously reconsider those provisions.

I believe in God and am fully prepared to put my head above the parapet. I do so to condemn those in the Church of England and other organised religions who seek to use the lives of ordinary gay men and women as a crucible in which to play out their own internal theological disputes. How can it be sensible that, on the one hand, the Church is about to appoint a gay bishop, and, on the other, it is about to sack gay staff.

We see the way in which a tradition in the Church seeks to persecute gay men and women. Even today, the right reverend Prelate the Bishop of Oxford is under intense pressure following his appointment of Dr Jeffrey John as the Bishop of Reading. The fact that he is celibate is immaterial because he has a history of homosexuality. That is enough for his critics to want him out. It seems irrelevant that he might be the best man for the job.

I will take some convincing that these regulations will not be unfairly used to persecute good men and women. I fully accept the right of the Christian Church to appoint Christians to its ministry, of a mosque to appoint a Muslim, or a temple to appoint a Hindu. That is their right, and it is one that the Employment Equality Regulations protect. But I cannot accept that it is right for an organised religion to dictate that those in its employment should or should not be of a particular sexuality—no more than that they should or should not be of a particular race.

I invite noble Lords to imagine the case of the mythical librarian in an evangelical theological college. She is a Christian with deeply held convictions, but she is also a lesbian.

Do we really want to sanction regulations that would require her either to be untrue to herself or to risk losing her job? If we were to approve these regulations, that is precisely what we would be doing, and it would be shameful.

It seems to me that the Church of England, whose representations to government appear to have been influential in bringing about the addition of Regulation 7(3), is seeking to do a dangerous thing. In its support of the extension of the circumstances in which it would be lawful to discriminate on the basis of sexuality, it is effectively absenting itself from normal civil society.

Not so long ago, being a Roman Catholic in this country led to persecution and execution. When we had a Roman Catholic monarchy, the same was true for Protestants. Thankfully, we now live in more tolerant times; but the Church history of this country in the 16th century is still being played out in other parts of the world. How can we try to advocate decent civil society in other countries when we legitimise the practice of discrimination against gay men and women by religious institutions?

What is the difference between an absolute right to remove someone from their job because they are gay and an absolute right to put somebody in gaol because they are gay? Shall I tell noble Lords what the difference is? The difference is in the degree of prejudice in the law. This feels more like a provision dreamed up by the Taliban than one suitable for a mature democracy.

I recognise that this country has an established Church. It is represented in this House. However, I say to the Lords spiritual on the Bishops' Benches that if they try to use the privilege that they enjoy—the extraordinary privilege that we all enjoy—of law-making, by using the civil law as a means of exempting themselves or their religion from the norms and values of civil society, they will have diminished their role in society. Gay people may be a minority in society, but so too are those who actively profess a faith.

Each is entitled to protection, but not at the expense of the rights and dignity of the other. That is what equality means. Today we have the opportunity to demonstrate that this House is a modern Chamber, one that acknowledges that religion has a place in the national debate, but not a dominant or superior one.

We have the opportunity, in supporting the noble Lord's Motion, to influence the kind of society we, and others, want to live in. That society recognises and celebrates differences, and does not allow irrelevant factors to determine a person's life chances. One's sexuality is an integral part of one's identity. It is what makes us human.

I give my noble friends on the Front Bench due warning that I will oppose these regulations, and I will do all in my power to try to convince them to change their minds. This is a Government of which I am proud, but this law is a huge stain on a worthy record on equality. I have never voted against my party or Government, but in all honesty, noble Lords cannot expect a turkey to vote for Christmas, no matter how important it is in the Christian calendar.

I support the noble Lord's Motion to disapprove these regulations, and I very much hope that the Government will think again.

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, on an issue of such important principle as this, I hope that many other Lords on the Benches opposite have listened to what the noble Lord, Lord Alli, has said and would put principle above party. This is not a party matter; it is a fundamental question of the freedom of gay people in our community.

I am sorry that the noble Baroness, Lady Miller of Hendon, has been illogical about this. First, she condemned these regulations on the grounds that they will cause endless problems in the tribunal, in the interpretation of the words here such as the noble Baroness, Lady Miller of Hendon, mentioned several times. All of the phrases that occur in Regulation 7(3) will cause major difficulties in the tribunal and endless arguments. At the end of the day, as my noble friend says, it is likely that the whole of Regulation 7(3) will be struck down. What are we going through this for? Why create such a lot of work for lawyers in the employment tribunal, when we know what the result will be at the end of the day?

In spite of the noble Baroness's reference to one individual who has expressed a contrary point of view, I prefer to accept the opinion of my noble friend and of the Select Committee. The article on which the employment regulations are supposed to be based explicitly rules out,

"discrimination on another ground".

That is at the end of 4.2, and it has not been mentioned yet.

It is reasonable that differences in treatment may exist if there is a genuine occupational requirement, but, with great respect to the noble Baroness, we would not have had the minefield that she mentioned if the Government had stuck with their first thought and confined themselves to Regulations 7(1) and 7(2).

The directive envisages circumstances other than genuine occupational requirement in which difference of treatment on grounds of age—but not for any of the other characteristics mentioned—are permissible. Specifically, the directive does not allow for differences in treatment on grounds of sexual orientation, other than the GOR. Therefore, the directive cannot be held to allow the managers of employment for the purposes of an organised religion to apply either of the criteria in 7(3) of the sexual orientation regulations.

It is not an answer to say, as Barbara Roche did in her letter to Stonewall, that the expression,

"for the purposes of an organised religion", had a limited meaning. She acknowledged that faith schools might come under the provision. I imagine that religious NGOs, aid organisations, missionary societies and newspapers such as the Catholic Herald, the Church Times and Q-News would all be able to make a case, if they chose to do so. The exact scope of the exemption is unclear because there is no immediately relevant case law on the words,

"for the purposes of an organised religion", which, I believe, were taken from Section 19 of the Sex Discrimination Act 1975. I have been informed of two cases under the old Section 4 of the Race Relations Act 1976 at employment appeal tribunal level, which dealt with employment for the purposes of a private household. In both cases, the expression "for the purposes of" was given a broad interpretation. I suggest that it may read across into this order. In any case, it will give rise to many cases in which it will be claimed that it does.

The point is not the number of organisations that will be covered by the expression. Article 4.1 does not allow any discrimination on such grounds, contrary to the assertions of the DTI in its evidence to the Select Committee. It is certainly true that the doctrines of certain religions criticise people who are gay, but I am not aware of anything in the Bible or the Qur'an that says that employers should not hire gay people. That was confirmed by Mr Magyar of the DTI, who said, in answer to a question from the noble Lord, Lord Lea of Crondall, in the Select Committee:

"We are not aware of any cases in which religious doctrine requires a post to be filled by persons of a particular orientation".

Therefore, it is impossible to satisfy the tests in 7(3)(b)(i), because the doctrines of no religion say anything about the employment of people of a given sexual orientation.

The second leg of 7(3)(b) is where the nature of the employment and the context in which it is carried out are such that hiring somebody of a particular sexual orientation would conflict, as has been quoted, with the strongly held religious convictions of a significant number of the religion's followers. When my noble friend Lord Russell asked Mr Magyar which part of the directive he relied on for the wording of 7(3)(a), he answered that it was in Article 4.1, which deals with the GOR, which is a different matter. If we agreed to the provision, we would allow the bigotry and prejudice of some of a religion's followers to dictate its employment policy. I think that it would be the first time in any western country when anti-gay conduct has been approved by legislation.

If the argument is that the sacred books are highly critical of gays, so they are of many other human characteristics, such as wanting something that one has not got. The exception—

Photo of Lord Pilkington of Oxenford Lord Pilkington of Oxenford Conservative 9:15 pm, 17th June 2003

My Lords, perhaps I may interrupt. Has the noble Lord considered that various other members of the European Union are actually implementing this directive?

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, I think that the noble Lord was under a misapprehension. I did not intend to refer to his speech but I shall do so now that he has invited me to elaborate on his remarks. He said that trade unions or Churches may decide who to admit to their communities and that faith communities should not be dictated to by any state. We are not concerned here—

Photo of Lord Pilkington of Oxenford Lord Pilkington of Oxenford Conservative

My Lords, I asked the noble Lord a simple question. Is the noble Lord prepared to accept that other members of the European Union—for example, Ireland or Germany—have accepted the amendments to the directive. I do not want him to comment on my speech, which was minor and neither here nor there. I just want him to answer my question. What is the rest of the European Union doing?

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, I do not believe—but I am subject to correction if I am wrong—that any other European country has, in its regulations, an equivalent of Regulation 7(3). I may be wrong—

Photo of Lord Avebury Lord Avebury Liberal Democrat

—and I dare say that your Lordships could refer me to regulations in Saudi Arabia perhaps where equivalent provisions exist.

Photo of Lord Avebury Lord Avebury Liberal Democrat

My Lords, but in any case, with respect, we are legislating for the United Kingdom and not for Ireland or Germany. We should therefore not be guided by what has happened in other countries, but we should stick to what should be done in the United Kingdom.

The exception,

"emerged during the recent consultations on our draft regulations", as the Minister told Stonewall. Specifically, it came almost verbatim from paragraph 24 of the Church of England response to the DTI consultation document, which called for the insertion in Section 5 of these regulations, the words:

"Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending religious susceptibilities of a significant number of its followers".

That explains where the words came from, to answer the question posed by the noble Baroness, Lady Miller. It got there by Church of England lobbying which, as the noble Lord, Lord Alli, explained, was not subject to any consultation.

However, as soon as I saw these words I wrote to Mr David Tredinnick, the chairman of the Select Committee on Statutory Instruments, pointing out that they were outside the scope of the directive and asking whether Standing Order 151 in the Commons and Standing Order 74 in your Lordships' House, where they deal with the vires of a statutory instrument, should make specific reference to orders which go beyond the scope of their parent European directives. Mr Tredinnick replied that standing orders did not need alteration because these powers were already contained in the existing wording. Indeed, I am sure that they are, but the debate in your Lordships' House today emphasises the importance of putting this on the face of the standing orders.

As my noble friend said, the Select Committee has now reported that there is doubt as to whether Regulation 7(3) is intra vires. It draws these regulations to the special attention of both Houses in very strong and, I think, unprecedented language. I am open to correction, but I do not think that the Select Committee has ever had occasion to use this power before. It also criticises the Government for consulting on Regulation 7(3) with only a small number of representatives of Churches and not with representatives of any body which is likely to be affected by the changes.

When these orders were considered by the Joint Select Committee on 3rd June, it had to make do with photocopies because the printed versions had not yet been published. The Select Committee has done very well to get its report out quickly, but it was available on the web only late on Friday afternoon. That has not given your Lordships time to consult with the representatives of those who may be affected in the light of the committee's strictures.

As with much of the business of the House these days, the Government's idea seems to be to pile it on with the minimum time for consideration, hoping that shock and awe will eliminate legitimate objections. I hope that they have miscalculated on these regulations and I look forward to supporting my noble friend in the Division Lobby.

Photo of The Bishop of Worcester The Bishop of Worcester Bishop

My Lords, although we on these Benches are not a party and are not whipped, your Lordships will understand that it is with some hesitation that anyone speaks against the very strong representation of not only the Archbishops' Council of my own church but also the leadership of many other denominations and faith communities.

The words of the right reverend Prelate the Bishop of Blackburn undoubtedly reflect what the Government have heard from our Church. I suspect that they reflect the views of perhaps the overwhelming majority of bishops, and I am sure that the House will weigh them in that light. In speaking at this point, therefore, I do not seek to give to my words and arguments the kind of weight of support that he rightly would claim as his. However, I hope that the House will understand that there are occasions on which it is quite important to place on the record of a debate such as this the view of a minority, of whom I am glad to be one. I take the view that the representations made on behalf of my own Church are not proportionate to the problem with which they seek to deal. I shall support the noble Lord's Motion.

There are in the Church and in religious communities two debates of very great significance. First, there is the debate about sexual ethics. That debate needs to be conducted with respect and coolness, particularly in view of the nature of the subject. I do not for one moment attribute prejudice or bigotry to those who disagree with me in that debate. There are significant arguments with which it is important for the mind of the Church to engage. We are doing so, and we are seeking every opportunity to enable others to consider their positions on this topic. I want that process to continue.

Secondly, there is another less prominent debate that I suspect may be more important in the long term; namely, the debate in religious communities about the human rights tradition. I believe that that is a very important development in modern society. I also believe that it is frequently pursued to the neglect of the rights of communities in society and with an interest only in the rights of individuals. To that extent, I have much sympathy with those who say that, as a balancing factor, it is important to attend to the rights of religious communities to maintain their own characters and their own lives.

However, there are two reasons why at the end of the day I still find myself regretting the form in which this particular regulation has been brought before the House and supportive of the Motion tabled by the noble Lord, Lord Lester. First, there is the phrase about the beliefs of a significant number of the followers of a religion. I have said, and I repeat, that I do not hold in disrespect those who out of Christian, Jewish, Muslim, Sikh or Hindu conviction believe that the conduct of sexual life has to be within marriage, or by abstinence. However, I find unacceptable the use of phrases such as "beliefs" and "significant number", which open the door to some kinds of campaigning about which all of us would wish to be ashamed.

I have to say to your Lordships that it is not only in religious communities that such campaigns can be mounted. In Worcester, I have watched the British National Party clothe itself in religion, precisely for the purpose of undertaking campaigns of that kind. Therefore, I find it extremely difficult to accept that we should be advancing, with the support of religious communities, a regulation that includes such an open-ended licence for people to advance things that are not the doctrines of the Church and may not be the doctrines of any religion. Frankly, they are their own gut reactions, which they clothe in those doctrines because they believe that it will advance their cause. That concerns me very greatly indeed.

My second difficulty is that I do not believe that the rights of religious communities are unlimited in relation to the civil law of society. A balance must be struck, time and time again as a matter of fact, about whether religious communities may preserve their distinctive character or whether that distinctive character goes too far outside what the public good has come to see as right. I frankly believe that on many issues those matters will be very controversial. For example, we have seen the controversy about the rights of animals in relation to techniques of slaughter that have substantial religious support and tradition behind them. We shall not avoid what is a serious debate in all areas of society, all our Churches and all our faith communities. Certainly, we shall not be able to avoid it in this House.

My concern is that a regulation has been presented to us today that cuts through that debate as though the issue was completely clear. I do not believe that it is, and I do not believe that the language is clear. I am not worried so much about litigation and long deliberations in courts of law. What worries me much more is what might happen on the streets, when people wind up communities. I do not believe that we have yet explored nearly far enough the possibility of creating language in a regulation that is sufficiently limiting and proportionate to defend those things that are undoubtedly necessary for a character of a religious community but also require that community to live within the insights of society as a whole. That is why I have taken it on myself to voice a minority judgment and to express my support for the Motion of the noble Lord, Lord Lester.

Photo of Lord Lea of Crondall Lord Lea of Crondall Labour

My Lords, I follow the right reverend Prelate in one respect—his caution against exaggeration on either side of the debate. There is a worrying tendency in this debate for people to go well beyond the question of the vires of the transposition of a European directive. The temperature of the debate has been raised well outside the scope of the Motion that the noble Lord, Lord Lester, purported to move. The noble Lord used the word "annul", but in his Motion the word is "amend".

I am a member of the Joint Committee on Statutory Instruments. Indeed, the noble Lord, Lord Avebury, mentioned the point that I probed on that committee. However, although I am a member of the committee and strongly support its report, I shall not be voting either way on the Motion. I shall make a couple of points about that.

First, as the right reverend Prelate pointed out, two debates are going on here. In one respect, one of them is ultra vires, since all we ought to be debating tonight is whether we agree about the question of doubt about the vires of Regulation 7(3). We should not be having the broad debate that we seem to be getting into. We should not be raising the stakes of tonight's debate as noble Lords on all sides have been, by making points that imply that the European directive transposition gives us a lot of scope to do this or not to do that. In fact, it is quite remarkable that we are having this debate on the transposition of a European directive, because there is no argument about the fact that we are transposing a European directive. The noble Baroness, Lady Miller of Hendon, made some remark about how this would have been done differently by a different government—I do not know whether that is the point that she was touching on—but broadly speaking, we all know that we are transposing a European directive with very little wriggle-room for how we transpose it.

The only wriggle-room for how we transpose European directives is to some extent what is made explicit in our transposition through regulations and what is left implicit. Regulation 7(3) in some respects makes explicit what, it can be argued, is implicit in Regulation 7(2), both following Articles 4.1 and 4.2 of the European Directive. For those noble Lords who doubt what I have just said, let me remind you of what is stated in Article 4.1 of the European Directive of which this is the transposition. The Equality Directive provides that Member States may provide that a difference of treatment which is based on a characteristic related to religion, belief, disability, age or sexual orientation,

"shall not constitute discrimination where, by reason of the nature of the particular occupational activities or the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement."

The ultimate reason why, in a sense, it does not matter what we do tonight, and the reason why industrial tribunals will inevitably have to look at some cases—there is no way in which the Archangel Gabriel could come down here and say what are the words to avoid anybody going to an industrial tribunal—is that these transpositions are going to be ambiguous when it comes to the behaviour of an individual and they will have to be tested. There is no easy way out of that, and whatever happens when the House divides, as it is said it will tonight, it should be recognised that this is a very important transposition of a European directive and it is unreasonable for people to say that this is a set-back for people when it is clearly a step forward, or if we do the opposite, to say that it is a leap further forward. This is a very solid step forward in protecting people's rights. People are grossly exaggerating what an industrial tribunal would find on a case by case basis if Regulation 7(3) were not there. I caution noble Lords to deal with the rather narrow point of what is ultra vires. There is some doubt about it, but there is not as much difference as has been said in some parts of the debate this evening.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative

My Lords, I agree with the noble Lord, Lord Lea of Crondall, about the importance of distinguishing between arguments on the merits of the objective of these regulations and the particular regulation we are talking about, and on the other hand the technicalities—to use his word—of the means by which that objective is achieved. It was inevitable that this debate should give rise to very well informed and passionately felt submissions on each side of the arguments about the merits of the objective. I do not feel qualified to engage in that, and it would not be to the point that I want to address if I were to do so. The point seems to me to be a very narrow one; it is whether the committee was justified in what it said in its report at paragraph 1.11, two sentences of which I wish to cite. The report states:

"The Committee considered that regulation 7(2) was justified by Article 4.1 of the Directive, but that regulation 7(3) might permit difference of treatment based on a characteristic related to sexual orientation where the characteristic could not be said to be a 'genuine and determining occupational requirement' which was proportionate, as envisaged by the Directive".

The question alone that I should like to address, and which forms the core of what the noble Lord, Lord Lester of Herne Hill, said to us some time ago now, is whether the committee was justified in observing that doubt. I have very great sympathy with those who drafted the regulations. It is an extraordinarily difficult subject. To transpose—to use the word used by the noble Lord, Lord Lea—the requirements of Article 4.1 into our own domestic legislation in a way which meets the norms that we look for, high among which is certainty, is an enormously difficult job.

The right reverend Prelates, seated opposite in such impressive numbers, will never have preached a sermon of this character themselves but they will recognise the characteristics of a sermon in which the preacher displays and shares his doubts but fails to come to a conclusion that can be described as teaching. I am afraid that my own contribution tonight at this late stage is going to have that melancholy characteristic.

It seems to me that one starts with looking at Article 4.1 and one sees there that the draftsman has recognised that it is necessary to take account of the specific susceptibilities that arise when a characteristic related to, for example, sexual orientation constitutes a genuine and determining occupational requirement by reason of the nature of the particular occupation or activities concerned, provided that it is proportionate and so forth. That is the language that has found its way into Article 4.1 and that is the way in which the draftsman of the article has sought to meet those susceptibilities. The question—it is quite a narrow one—is whether the recently added Regulation 7(3) contains language that reliably falls within that requirement of being a genuine and determining occupational requirement. Regulation 7(2) does and the committee was happy about that, but does Regulation 7(3)? It has to be able to come within the envelope, or under the umbrella, of being a genuine and determining occupational requirement.

The language of Regulation 7(3) speaks of employment,

"for purposes of an organised religion"—

I pass over the arguments about that. Regulation 7(3) further states that,

"the employer applies a requirement related to sexual orientation".

I pass over the purposes which then follow.

Does a requirement related to sexual orientation always fall within and never outside the ambit of a genuine and determining occupational requirement? I refer to a particular sexual orientation which is a genuine and determining occupational requirement. That is the question. Of course it is possible to have more than one view. Sir Anthony Hammond QC advised the department. I have the greatest respect for him. He was legal adviser to the Home Office and after that Treasury Solicitor. But when I read the record of the committee's evidence taking, it seems to me that there was revealed a very sensible ground upon which it had doubt. Mr Magyar, the legal adviser, was very frank. He said:

"I think that the two provisions are covering slightly different situations. 7(3) may be slightly broader but both—".

He was interrupted at question 31 by Mr Andrew Bennett, who asked:

"Only slightly broader?".

Mr Magyar replied:

"I would say so. The criteria are drafted strictly".

He went on to express his opinion that there was no part of Regulation 7(3) that did not fall within the language that I have mentioned. The committee was worried about the provision being slightly broader. Is it so broad that, in any respect, it becomes ultra vires?

I do not know as yet how I am going to vote on the matter, and I shall be influenced very strongly, not only by some of speeches that I have heard—I shall not particularise—but by what the Minister is going to say. I am interested in whether he accepts that there is a doubt, whether he thinks that there is a doubt but it is worth putting up with, or whether he thinks that it might not in all circumstances be better not to throw the baby out with the bathwater. We have heard that expression already from my noble friend. He might think that it might be wiser to look after the baby for a little longer and change the bathwater.

At the moment it seems that, in this rather passionate debate, we run a risk of overlooking our duty to legislate in a way that is certain and clear, and will not put unfortunate people to the expense and stress of litigating to find out what we really meant and then going to appeal and so on. I have shared my doubts. I have not attempted to teach. In those circumstances, it has been the worst kind of sermon. I want to hear what the Minister says.

Photo of Baroness Whitaker Baroness Whitaker Labour

My Lords, pace what my noble friend Lord Lea said, and indeed the noble and learned Lord, Lord Mayhew of Twysden, I just want to add a very small footnote to what the right reverend Prelate the Bishop of Worcester said in his very profound address. The noble Lord, Lord Lester of Herne Hill, set out the dubious legality of Regulation 7(3), and my noble friends Lord Alli and Lady Turner have eloquently described the implications.

I just want to say that it seems to me that Regulation 7(3) does not also follow the spirit of Article 13 of the Amsterdam Treaty, which I had some involvement in drafting. Article 13 is a fundamental part of our new basis of agreed rights. It flows ultimately from the UN Charter, the European Convention and the Human Rights Act, rights that we need to assert as our common ground in our multicultural society. Exactly for the reason that the faiths and beliefs of our societies ought to be respected, we need to respect them within a common ground of tolerance underpinned by universal human rights and fundamental freedoms.

Freedom from discrimination in employment, qualified only on the narrowest grounds, is one of the most important of these. Freedom from discrimination on the grounds of sexual orientation is another. This last freedom is the least honoured in everyday culture. One can hear prejudice which, if it were about women or people from different ethnic backgrounds, would be repudiated—even prosecuted—spoken quite freely about sexual orientation. It is time to take a stand, and I do urge the Government to think again.

Photo of Lord Clement-Jones Lord Clement-Jones Liberal Democrat 9:45 pm, 17th June 2003

My Lords, this is less of a speech than it is a set of questions to the Minister. We have heard some fine speeches today, many of which have been very technical about the relationship of these regulations to the original directive. However, when looking at whether these regulations are acceptable, it is the outcome that is important—the impact that they will have on individual lives.

The right reverend Prelate the Bishop of Blackburn, whom we all respect, made it clear that he would only wish these regulations to be taken so far. Rather than bar homosexuals in regard to sexual orientation, I think that he was talking about abstinence. The same debate continues about the appointment of the Bishop of Reading.

However, the first question is whether or not a religious organisation such as the Church of England, when putting an advertisement in a newspaper, for instance, could say "heterosexuals only need apply". Will that be legal? At what level of employment will that be legal?

Secondly, at interview, an employer will ask questions of prospective employees. What kind of questions will the employer be entitled to ask? Will he be able to ask if the candidate is gay, lesbian, in a relationship, or celibate? These questions flow from the regulations. Perhaps the Minister can clarify whether it would be perfectly proper for a religious organisation to ask them.

I live in Clapham, where the Board of Education of the Church of England is sponsoring a city academy. Many people had their doubts about whether it was proper for the board to be a sponsor. What is the nature of the sponsoring relationship in those circumstances? What signals are sent out to parents and prospective pupils? Will the school be able to interrogate potential employees about their sexual orientation or not?

My questions are practical, not technical. They address issues that will be of great importance if these regulations are passed tonight. I fervently hope that they are not passed.

Photo of Lord Brennan Lord Brennan Labour

My Lords, I ask for the patience of the House in listening to a short speech. I sincerely admire the strongly held convictions of my noble friends and colleagues on the other Benches. I hope that they respect the strongly held beliefs of the people who disagree with them. This is not the occasion to enter into a debate of Church and religion versus gay and lesbian rights. The question is whether or not these regulations are intra vires.

Some things need to be plainly said by way of background. First, the Human Rights Act 1998 does not provide a right against discrimination of the kind that we are debating this evening. That is why the Minister certified that these regulations were compatible with the Act. Secondly, the preamble to the directive explicitly recognises the ability of member states to take into account in formulating the directive the interests of religious and Church organisations within each member state. In addition, we must bear in mind that the law in this country—I repeat, the law—allows Churches and religious organisations to act in a way that is similar to that contemplated by Regulation 7(3).

Section 19 of the Sex Discrimination Act is a similar provision. So far as I am aware, it has not produced a large-scale litigation suggested by the noble Lord, Lord Lester. Equally, Section 60 of the School Standards and Framework Act 1998 explicitly provides that the governing body of a voluntary-aided school shall have regard in connection with the termination of employment of a teacher to any conduct on his or her part that is incompatible with the precepts, tenets or religion of the school in question. That is the law of our country now. Those considerations illustrate the flaw in seeking to convert the regulations into the confrontational position that I said was not justified.

I hope that the noble Lord, Lord Lester, will forgive me for saying that the confidence that any lawyer reposes in the quality of his own opinion is rarely a guide to its reliability. I include myself in such an analysis. However, when the Joint Committee considered Regulation 7(3), it had before it and took into account, at paragraphs 1, 12 and 13, seven discrete but cumulatively effective arguments in favour of the legality of Regulation 7(3). It is open to lawyers—commentators are not lawyers—to doubt whether provisions are in fact within the vires of the directive or not. The reassurance that I give to the House that the directive is being properly applied involves the point made by the noble and learned Lord, Lord Mayhew. It is not a question of whether Regulation 7(3) stands or falls; it is a question of whether, in any particular case in which a Church or religion seeks to rely on Regulation 7(3) in its defence, it is required to show under Article 4.1 that the directive in this context commands the analysis of Regulation 7(3) and that the decision represented a genuine and determining occupational requirement that has been applied proportionately.

Photo of Lord Brennan Lord Brennan Labour

My Lords, I am sorry; I do not propose to give way. This is a long debate. If the noble Lord will forgive me, he took a long time himself.

This is not an occasion for battle; it is an occasion for balance between different rights. The Government sought to strike the right balance between competing interests. I believe that they have done their best and we should agree to the regulations.

Photo of Lord Sainsbury of Turville Lord Sainsbury of Turville Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry, Parliamentary Under-Secretary (Department of Trade and Industry) (Science and Innovation)

My Lords, I welcome this opportunity to explain the rationale behind Regulation 7(3) of the sexual orientation regulations and to clarify its scope. We have a duty to think very carefully indeed before making any exception for equality legislation. A provision that concerns the sexual orientation of people employed for the purpose of organised religion is clearly a particularly sensitive matter, and it is right that we should consider the evidence set out by the Joint Committee on Statutory Instruments in its 21st report of 2002-03 before going on to consider the merits of the regulations as a whole.

The noble Lord, Lord Lester, is widely respected on all sides of the House for his long-standing commitment, experience and achievements in the fields of equality. He set out the issues and his own views in a characteristically measured and fair way. In doing so, he did a service to the House.

Before I go any further, I must mention the report of the Joint Committee on Statutory Instruments. Again, it is a measured and genuinely constructive contribution to the debate. The committee concluded that the doubt about the vires of Regulation 7(3) was sufficient to draw it to the attention of both Houses but the committee has not, contrary to some rumours, said that the regulations are ultra vires. Indeed, it notes that the Government's arguments about the compatibility of Regulation 7(3) with the directive might succeed if tested in the courts. We are firmly of the view that it would.

We have made a considerable investment in working with a wide range of stakeholders on equality policy since 2000. In addition to bilateral meetings, seminars, conference and on-line research, there have been no fewer than three national consultation exercises in the past three years, prompting just short of 4,000 submissions. I believe that they have provided an invaluable basis of evidence from which to take decisions.

I say to the noble and learned Lord, Lord Mayhew, that the baby has been sitting in the bath water for a very long time with people throwing ducks and sponges at it. It is now time to take it out of the bath, dry it, and send it to bed. I hope that the House will do that this evening.

The first exercise informed our negotiations with other member states. The second focused on principles which would underpin new equality legislation. But, as so often happens, it was the third consultation with the publication of detailed draft regulations, which helped us to highlight and resolve practical difficulties.

It became clear that with the regulations as drafted the Churches would have some difficulty upholding the doctrine and teaching of their faith in relation to particular posts. I suspect that quite a variety of faiths represented on the Benches this evening may disagree quite strongly with other religious beliefs, but we recognise and respect the fact that they are genuinely held.

In the same way we do not believe that these regulations should interfere with religious teachings or doctrine, nor do we believe it appropriate that doctrine should be the subject of litigation in the civil courts.

The right reverend Prelate the Bishop of Worcester made a very interesting and fine speech, but I say to him that the logic of his comments about taking out the words "strongly held religious convictions" means that we would have to go back to a situation where religious doctrine and the reasonableness of it, would have to be debated in tribunals.

The employment directive is explicit in recognising the status of Churches and religious associations. As Lord Russell said once in this House,

"The difficulty comes not when evil is pitched against good, but when two goods are pitched against each other".

In this case, they are religious traditions and the sexual orientation regulations. We have to draw a careful line between the two within the terms of the employment directive. I believe that we have succeeded in doing that.

I turn to the point made by the noble Lord, Lord Lester, who asked what the "etc" meant in the heading,

"Exceptions for genuine occupational requirements etc".

The "etc" does not introduce additional points; it refers to the issues which relate to GOR exceptions. It does not refer to further possible situations, but deals with genuine occupational requirements and the issues which relate to them.

This is not a question of extreme positions. Article 4(1) of the European directive is quite clear that religious considerations can be taken into account. What we are debating this evening is exactly where that line is drawn.

Under these circumstances I believe that the Government need to take a lead—and we did that in preparing Regulation 7(3). It resolves the problem of interfering with doctrine and teachings while remaining consistent with the directive. We believe that Regulation 7(3) is lawful because it pursues a legitimate aim of preventing interference with a religion's doctrine and teaching and it does so proportionately because of its narrow application to a small number of jobs and the strict criteria which it lays down.

There is no need to copy out the words "genuine", "determining", "legitimate", "proportionate", because the provisions embody the obligations which are set out in the directive.

Having explained why Article 7(3) is necessary, I wish to focus on the scope of the provision. I agree entirely with the noble Lord, Lord Lester, that this is a crucial issue. As well as dealing with the points that he and the Joint Committee on Statutory Instruments have raised, I hope that it will assist the House if I pick up on others which have been reflected in press reports over the last week.

When drafting Regulation 7(3), 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. The first clause reads:

"This paragraph applies where—(a) the employment is for the purposes of an organised religion".

First, this is no "blanket exception". It is quite clear that Regulation 7(3) does not apply to all jobs in a particular type of organisation. On the contrary, employersmust be prepared to justify any requirement related to sexual orientation on a case by case basis. The rule only applies to employment which is for the purposes of "organised religion", not religious organisations. There is a clear distinction in meaning between the two. A religious organisation could be any organisation with an ethos based on religion or belief. However, employment for the purposes of an organised religion clearly means a job, such as a minister of religion, involving work for a church, synagogue or mosque.

A care home run by a religious foundation may qualify as a religious organisation, for example. I do not wish to make light of differences which the involvement of a church, mosque or synagogue can make to the culture of an organisation, but I believe that it would be very difficult under these regulations to show that the job of a nurse in a care home exists,

"for the purposes of an organised religion".

I would say exactly the same in relation to a teacher at a faith school. Such jobs exist for the purposes of health care and education.

The noble Lord, Lord Clement-Jones, asked about a number of human issues that turn out also to be technical. He raised the question of an advertisement. That could not say "only heterosexuals need apply" unless it was a genuine occupational requirement that the job holder be heterosexual. That would depend on the application of the clause.

Regulation 7(3) does not stop there. Even if an employer can show that the job exists for the purposes of organised religion, and that is a significant hurdle, he may only apply a requirement related to sexual orientation if one of two further tests are met. In the first test the requirement must be applied to comply with the doctrines of the religion. We do not believe that that test would be met in relation to many posts. It would be very difficult for a church to argue that a requirement related to sexual orientation applied to a post of cleaner, gardener or secretary. Religious doctrine rarely has much to say about posts such as those.

If the first test is not met, what about the second? There the church will have to show that the requirement related to sexual orientation is necessary,

"because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers . . .".

I shall dispel one or two myths. It is neither sufficient for the requirement to be imposed simply because of the nature of the work and the context in which it is carried out, nor may the requirement be imposed simply because of the religious convictions of the followers of the faith. Both elements have to be satisfied before the second test can be met. They are strict tests and will be met in very few cases. That is contrary to the impression created by some of the more sensational comments that have found their way into the press over the past few weeks.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, I realise that the Minister intends to move on to another aspect. He used the word "necessary". What he said was that it had to be shown to be "necessary" in terms of Regulation 7(3)(b) too. Where is that word to be found, and how can the proportionality test be read into the words of the provision?

Photo of Lord Sainsbury of Turville Lord Sainsbury of Turville Parliamentary Under-Secretary (Science and Innovation), Department of Trade and Industry, Parliamentary Under-Secretary (Department of Trade and Industry) (Science and Innovation)

My Lords, it is necessary to be shown that that is the case. That is clearly stated in Regulation 7(3). It says that the paragraph applies only "where"—and therefore it is necessary that—those tests are applied. I would have thought that that followed clearly in Regulation 7(3).

As I said, the second test is then applied and there are the methods that have been referred to. Both elements have to be satisfied before the second test can be met. It is, therefore, a very strict test and one that will be met in very few cases. The position of a cleaner or a librarian, which has been raised many times, has to be judged against those criteria. They are strict criteria and one cannot say in a specific case what the situation will be. In such cases one has to apply the criteria and see whether or not they are fulfilled.

The noble Baroness, Lady Miller, raised the question of what was meant by a significant number of followers. Ultimately, that is a question of fact for the tribunals or the courts and will depend on the circumstances of each case, but it is not expected that this question should prove more difficult to resolve than other questions of fact which are regularly faced by the courts. Sexual orientation Regulation 7 has to be phrased in those terms to be workable in practice. If we had stricter wording, referring, for example, to a majority of the religion's followers, that could lead tribunals and courts to expect detailed statistical analysis to be submitted to them on the number of followers with religious convictions about particular requirements or the numbers without such religious convictions. I think we would all agree that that would not be practical.

Finally, what is the difference between Regulations 7(2) and 7(3)? There are two differences. First, Regulation 7(2) is of general application. It covers any employment where being gay, straight or bisexual is a genuine occupational requirement. By contrast, Regulation 7(3) applies only where employment is for the purposes of an organised religion and either religious doctrine or the nature and context of the job, together with the religious convictions of the religion's followers, gives rise to a genuine occupational requirement. Regulation 7(3) then applies to very few jobs. Only in very limited circumstances would a requirement imposed on someone whose job does not involve participation in religious activities be justified under Regulation 7(3).

Secondly, Regulation 7(2) applies where sexual orientation is a genuine occupational requirement. In other words, one has to be gay, straight or bisexual to do the job. Regulation 7(3) applies where a requirement related to a sexual orientation is a genuine occupational requirement. It is slightly wider than Regulation 7(2) in that respect but reflects the wording of Article 4.1.

To conclude, Regulation 7(3) is necessary if the regulations are not to interfere in Church doctrine. We understand how the Joint Committee on Statutory Instruments reached its conclusion and our extensive consultation leaves us in no doubt about the strength of feeling among the gay and lesbian community. But having considered all the arguments carefully, we are satisfied that Regulation 7(3) is intra vires and that from December the courts and tribunals will be able to construe this tightly drawn exception in a way that is consistent with the directive.

I understand entirely why we have focused in this debate on the provisions in Regulation 7(3). While an important part of the regulations, it is, of course, only a small part. We must not forget that there is no protection currently for those who experience harassment, discrimination or victimisation at work on grounds of their sexual orientation.

These regulations are designed to outlaw that kind of unacceptable treatment for the first time. They have a wide application. They cover employment and training across England, Scotland and Wales whatever the size of the organisation, whether in the public or private sector. They represent a significant addition to our domestic equality legislation and will make a practical difference to the lives of millions of people. I believe that they should be welcomed. I do hope that that has served to reassure the House and that the noble Lord, Lord Lester, will feel able to reconsider his Motion.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Liberal Democrat

My Lords, first, I thank everyone who has taken part in this important debate for having done so at this late hour, especially the Minister for his full, clear and helpful reply. Secondly, perhaps I may make clear that, like the Minister, I very much welcome the regulations and do not agree with the attack made upon them by the noble Baroness, Lady Miller of Hendon, suggesting that somehow they are not regulations that should generally be supported. I strongly support them. In particular, I strongly support the commitment to equality of treatment without discrimination placed on sexual orientation that they embody. As the Minister knows from previous debates, I regret only that they are by way of subordinate legislation and therefore can cover only employment and occupation. However, that is a matter for another day.

Thirdly, I must make it quite clear that there is no dispute about the need to balance, on the one hand, the fundamental right to religious freedom with, on the other, the fundamental individual right to equality without discrimination—indeed, not just an individual right, but the right of a vulnerable minority. I cannot improve on the wisdom, on this occasion as previously, of the right reverend Prelate the Bishop of Worcester in what he has said about that. There is a question of a fair balance, however, and I entirely accept that the Government have been struggling to secure a fair balance.

Fourthly, the debate today reminds me of debates on the Human Rights Bill when, at an early stage, the Churches sought—in a completely misconceived way, I have to say respectfully—a blanket exemption from the application of the Human Rights Bill to the Churches. At that stage the Government quite rightly did not accept their pressure and the religious freedom provision in the Human Rights Act goes no further than is necessary.

The central question raised this evening, as the noble and learned Lord, Lord Mayhew, rightly reminded us, is a quite narrow but important one. The question is whether, when one looks at Regulation 7(1), (2) and (3), Regulation 7(3) is, in the words of the Minister, a narrowly and carefully tailored provision based on the strict criteria of proportionality. That is the question.

If your Lordships would for the last time take up Regulation 7 and look at it again, Regulation 7(2) is quite clear, because it uses as its touchstone the notion of proportionality. One has to be of a particular sexual orientation; there has to be a genuine and determining occupational requirement; and it must be proportionate to apply that requirement in the particular case. That would apply equally to a religious context or any other context.

The vice, as I have described it, of Regulation 7(3) is one of over-breadth and vagueness. Leaving aside the vagueness of what is meant by "organised religion", the vice in Regulation 7(3)(b), if one looks at it carefully, is that there are no words of limitation. It is sufficient for the employer to apply,

"a requirement related to sexual orientation"— very wide words—

"because of the nature of the employment and the context in which it is carried out"— and, these are the limiting words—

"so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers".

So it is to comply with the strongly held convictions of a significant number of the religion's followers. There is no requirement of a genuine occupational qualification, no requirement of proportionality, no strict test and no strict criteria.

I agree with the noble Lord, Lord Brennan, that one should never trust one's own opinions, even if one is so foolish as to express them in public. I only expressed my opinion in the way I did because I am supported by the Joint Select Committee on Human Rights and their opinion, and I take comfort from that.

I have listened very carefully to the Minister and I agree with him that a tribunal or court might seek to read down Regulation 7(3) in the way that he suggests, to try to make it compatible with the directive. It is a technique that the judges increasingly have to adopt with badly drafted regulations. My plea this evening is to seek to avoid the courts having to remake these regulations by a process of interpretation, because it is our job as lawmakers to try to get the law right. I do not seek a fatal amendment opposing the regulations; I simply ask that they be sent back so that proportionate language can be inserted.

No noble Lord who spoke in this passionate, rational debate commended the language used in Regulation 7(3). The right reverend Prelate the Bishop of Blackburn, who did his very best to explain the justification for the regulations, said at the end of his important speech that he, too, was unhappy with the language that had been used because of its over-breadth.

With great respect for what the Minister said, the regulations are not satisfactory. The only way that we can show our disapproval is by seeking the opinion of the House. I regret, therefore, that I must now test the opinion of the House.

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 50; Not-Contents, 85.

Division number 3 Private Parking: Ports and Trading Estates — Employment Equality (Sexual Orientation) Regulations 2003

Aye: 48 Members of the House of Lords

No: 83 Members of the House of Lords

Ayes: A-Z by last name


Nos: A-Z by last name


Resolved in the negative, and Motion disagreed to accordingly.