My Lords, I start by declaring an interest. When one sees the Bill's protected characteristics, including gender, marital status, age, religion or belief, disability, race and so on, one could perhaps, like most of your Lordships, declare multiple interests. However, I have carried out some training for members of the Catholic Bishops' Conference of England and Wales through my company, Cumberlege Connections, and I am aware of its concerns about the Bill. It is on the implications of the Bill for religious belief that I shall speak, as have, I know, many other noble Lords, including the noble Lord, Lord Lester, my noble friend Lady O'Cathain, the most reverend Primate the Archbishop of York, the right reverend Prelate the Bishop of Chester and the noble Lord, Lord Davies of Coity.
I start by stating where the Catholic Church stands on human rights. All forms of unjust discrimination are wrong. That principle goes back to the New Testament. It is the inescapable consequence of a belief in the innate dignity of every human person, as created in the image of God. However, the church, like the drafters of the Bill, recognises that we can and should take account of differences between people where these distinctions are properly based and not simply a matter of prejudice. Accommodating difference and the needs of minorities is surely one of the key tests that distinguish a genuinely liberal democracy from one which is oppressive. Anti-discrimination law, protecting religious beliefs as much as other characteristics, should not be framed in such a way that it prevents those very beliefs being put into practice, but that, I fear, is exactly where the Bill takes us.
A matter of grave concern to many religious bodies is the definition of employment for the purposes of religion in paragraph 2(8) of Schedule 9. Such employment is relevant only if it "wholly or mainly" involves leading or participating in formal liturgy,
"or promoting or explaining the doctrine of the religion".
It is only if a post meets that definition that the employer can legitimately make a requirement relating to sex, transexuality, marriage or civil partnership, divorce or sexual orientation.
We are not debating here whether different religions should choose to make such distinctions. There are well established matters of clear belief and doctrine which religious bodies have held, in some cases for millennia, and which they are fully entitled to hold under Article 9 of the European Convention on Human Rights. All we are considering is whether the right of the religion to exercise that choice should be restricted by law to the narrow range of posts covered by the definition in paragraph 2(8) of Schedule 9.
Under the current Employment Equality Regulations 2003, there is no definition of employment for the purposes of an organised religion. An employer may therefore lawfully apply a requirement related to sexual orientation, first, so as to comply with the doctrines or, secondly, 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.
The same tests are in the Bill and seem to strike the right balance. So why do the Government feel that they now need to define employment for the purposes of religion? What is the mischief that this new provision addresses? I understand that officials have indicated that it has been introduced because the existing provision was being grossly abused in some cases. If so, I would have thought that courts would have no difficulty in making a judgment on the facts as to whether the plain meaning of the regulation was being abused and ruling accordingly.
What the Government have done in introducing this restrictive definition, however, is create a very narrow class of persons to whom the provision applies. It covers only those whose time is wholly or mainly spent on leading or participating in formal liturgical practices, or promoting or explaining the doctrine of the religion. As the most reverend Primate said, it takes no account of pastoral or representative functions, or of any of the myriad activities carried out to meet the functions of a religious body. Any post where liturgy and doctrinal explanation were not the whole or main tasks would have to be open to a person of any sex, marital status, transsexual history or sexuality, whatever the beliefs of the religion. It would be unlawful to reject an applicant or take action against a person in post, however grave the scandal caused.
What would this mean in practice? If a man employed as a Catholic diocesan marriage care co-ordinator abandoned his family and his wife in a well publicised and scandalous divorce case to remarry in a civil ceremony a woman with a similar history, he could not possibly have any credibility in the function in which he was employed. Yet any action the diocese took against him as a result would be unlawful.
I am not arguing that a religious body should have the right to refuse any form of employment on the grounds of sex, marital status and so on. Churches can and do employ builders, accountants and architects where there is no genuine occupational requirement to be a member of the religion never mind any question of their personal circumstances. I am arguing, however, that in a number of significant posts which may be occupied by people who are ordained, consecrated, religious or lay, it is right for a religious employer to require that their lives are not manifestly in opposition to the teachings of the religion and the beliefs of its followers. Is that too much to ask?
However, the Bill does offer a crumb of comfort. The Explanatory Notes reassure us that the definition, narrow as it now is, will at least permit the Catholic Church to require that a priest be a man. I am afraid to say, however, that the Bill will not even achieve that. I do not know whether those who drafted the Bill actually stopped to talk to a Catholic priest but the only priests I can think of who spend their time wholly or mainly either engaged in leading liturgy or in promoting or explaining doctrine will be the staff of seminaries or those with catechetical roles. The definition simply will not do as a description of the work of most priests.
I took a diary of a priest at random. He has spent 21 hours on the definition that is in the Bill. If one considers all the other activities, as the most reverend Primate was saying-such as private prayer, social engagements with parishioners, dealing with callers at either of his church offices-he has two-administration and finance, school visiting, paperwork, hospital visits, appointments, visiting the sick and other pastoral activities, they add up to over 60 hours a week. This is not a job description, it is a vocation: a way of life in the service of others.
Finally, this is not a matter that is of concern to the Catholic Church alone: 11 other religious groups who wrote to the Minister for Women and Equality in November stressing their very real concerns. I hope the Leader of the House will, on reflection, see fit to bring an amendment before your Lordships in Committee to remedy this defect. If not, I suspect amendments will need to be tabled from other sources to remove this unnecessary and discriminatory definition.