Clause 12

Equality Bill – in a Public Bill Committee on 16th June 2009.

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Sexual orientation

Amendment moved (this day): 217, in clause 12, page 8, line 16, at end add—

‘(3) Sexual orientation includes manifestations of that sexual orientation.’.—(Dr. Evan Harris.)

This is to put clearly into statute existing case law stemming from eg Amicus vs Secretary of State where it was held that a religious organisation could not avoid sexual orientation discrimination by referring to lifestyle matters which were a lawful and direct expression of sexual orientation.

Photo of Ann Winterton Ann Winterton Conservative, Congleton 4:00 pm, 16th June 2009

I remind the Committee that with this we are discussing amendment 220, in clause 13, page 9, line 27, at end insert—

‘(7A) If the protected characteristic is sexual orientation, A discriminates against B if A treats B less favourably than A treats or would treat others on the basis of a manifestation of B’s sexual orientation.’.

This is to make explicit in statute the case law (eg from Amicus vs Secretary of State) which holds that discrimination against gay people on account of their gay life style or camp appearance (for example) is direct discrimination.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am pleased to welcome you to the Chair again, Lady Winterton. In the 20 seconds that I had before we adjourned our earlier sitting, I said that I thought we could get through the amendments quickly, as the main point behind them had been debated to a significant extent in our previous sitting.

The two amendments are essentially equivalent. One amends clause 12 and would provide that sexual orientation includes manifestations of sexual orientation. Another, possibly slightly better drafted amendment, starred amendment 237 in the amendment paper, amounts essentially to the same thing, which is that sexual orientation

‘includes manifestations of any such sexual orientation.’.

Amendment 220 on page 147 of the amendment paper amends clause 13 and deals with direct discrimination.

I explained earlier that the concern was to put the provisions clearly into statute law with the point of probing what the case law is in that respect, not only because it is right and proper that manifestations of sexual orientation are—to quote the judge again—“intimately wrapped up” with one’s sexual orientation, but because it will help to make it clear to the public, and particularly to employers, that they cannot rely on a distinction between sexual conduct where it relates closely to sexual orientation and sexual orientation itself.

I explained that there is a request, bordering on an expectation, that employers will be able to do so when I referred to memorandum E14, which we received from the Catholic Bishops Conference. The memorandum says that the Catholic Bishops Conference would want to apply a conduct test, even for, it is implied,

“a residential caretaker post if it involves routine contact with the local Catholic community.”

It went on to say that

“there is a whole range of posts, paid or voluntary, where it is essential that the Church has the right to prefer a candidate whose life is in accordance with its ethos; these might include, for example, youth workers, members of marriage preparation teams, and parish secretaries. What all these have in common is a pastoral, representative, or functional role where their effectiveness in the post for which they are being paid would be severely limited if their life were openly at variance with the teachings of the Church.”

That is an interesting phrase. I do not know whether “openly” implies that it would not be an issue if they kept their private life to themselves, or whether the employer would seek to investigate their private life.

Photo of John Mason John Mason Scottish National Party, Glasgow East

Does the hon. Gentleman accept that the link between sexual orientation and manifestation varies? For some people, there is little gap between them, but for other people, particularly in the Catholic Church, where nuns and priests take a vow of celibacy, there is a large and distinct gap.

Photo of Evan Harris Evan Harris Shadow Science Minister

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

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

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

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

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

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

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

Included in that is

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

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

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

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

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

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

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

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

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

Photo of John Mason John Mason Scottish National Party, Glasgow East

Is the hon. Gentleman suggesting that case law would overrule this statute?

Photo of Evan Harris Evan Harris Shadow Science Minister

No. That is exactly the point I am making. I am asking that the statute make it clear what existing case law is, because that case was taken to clarify the statute. In a sense, the statute was clarified by that judgment. It was in the High Court, so it has precedence, but clarification would be helpful because, despite the judgment, there is still the assumption, or the request, that this sort of discrimination be permitted.

I think that the case law is clear. The intention of the Government at the time of the employment regulations on sexual orientation was clear. Even if it was not, the judge agreed with the Government’s position in his conclusions on the case. The Government did not appeal  on that point. The current intentions of the Government are clear on the point, but because this is a live issue and there is public debate, it would be wise to make that clear in statute as well. As I have said, this is not an attack on the beliefs of Churches, which are entitled to their beliefs. It is about protecting the right of gay people not to be discriminated against, in employment as well as in other areas, on the grounds of sexual orientation under the proxy of their conduct not being protected under sexual orientation legislation. That is what these probing amendments seek to make clear.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

It is good to see you in the Chair this afternoon, Lady Winterton. You missed our exciting debate on this very subject this morning. We, however, did not, so I will be brief.

The only point that I would like to make at this stage is that, as we did this morning, we appear to have quickly moved on to schedule 9, which we will debate in due course. I will only mention it briefly, Lady Winterton, so as not to test your patience. It seems to me that all the points that the hon. Member for Oxford, West and Abingdon has made, most of which I do not agree with, we can debate when we get to schedule 9; we can debate paragraphs 2 and 3 of that and the extent to which organisations can do the various things that he is suggesting they can. It seems that, under both this clause and the previous one, he is trying to pre-empt that debate and to set down much wider conditions than are necessary for this case.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am interrupting the hon. Gentleman, although he did not interrupt me. This does not apply just to schedule 9. I was using that as the best exemplar because in the provision of services there are restrictions on discrimination on the grounds of sexual orientation. I would not want to see, and I hope the Government would not want to see, people discriminating in the provision of services on the grounds of conduct that is intimately related to sexual orientation by claiming that it is not sexual orientation discrimination. In order to avoid having this debate under both those schedules and where it applies elsewhere, one has to have it under either the definitional clauses or under the clauses that describe direct discrimination. I do not think that there is any alternative, otherwise I would certainly have raised that when we considered the schedules as an alternative.

Photo of Mark Harper Mark Harper Shadow Minister (Work and Pensions)

I am grateful to the hon. Gentleman for clarifying what he is trying to do. The reason I think that what he is doing is faulty relates to the points that he is making in this debate, using schedule 9 as an example of why his amendments are justified. Having listened carefully to what he is saying about the paragraph in schedule 9 that details other requirements relating to religion or belief and what that would or would not allow someone to do, I am not clear that organisations would be able to do what he says they would be able to do. The wording of the schedule will not allow people to do what he is complaining about. Therefore, I do not think that his justification for these changes is sensible. I am just picking up his one point. I do not wish to sound like a broken record.

I also want to echo the point made by the hon. Member for Glasgow, East. From a religious perspective, referring to the particular Church he mentioned, the  Catholic Church, there clearly is a difference between sexual orientation and sexual practice, particularly in the roles of a proselytising nature, priests and nuns and so forth, given the vow of celibacy that priests and nuns take. For that religious organisation, there is a clear difference and I would have thought that a religious organisation above all would be capable of seeing the difference. I am not persuaded by either the lengthy discussion we had this morning or by the hon. Member for Oxford, West and Abingdon’s argument that these two amendments should be carried by the Committee. My final point, on which I am sure the Solicitor-General will be in agreement, is that I am clear that he does not speak for the Government.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 4:15 pm, 16th June 2009

I second that.

I shall keep this simple, I hope. These amendments seek to make explicit the fact that it is unlawful to discriminate against a person on grounds of manifestations of their sexual orientation—appearance, lifestyle, the people they see, the places they go. However, the hon. Member for Oxford, West and Abingdon answers his own amendment, because it is absolutely the case that Amicus v. the Secretary of State for Trade and Industry has interpreted sexual orientation regulations to say that such orientation includes manifestations of sexual orientation. We have replicated the words in those regulations in the Bill, in so far as they are relevant. Consequently, there is simply no need to do any more; the law is absolutely clear.

By way of a footnote, the amendment would introduce a needless anomaly, because we would put manifestation into the definition of one protected characteristic without putting it into any others. There might be manifestations of being a white British person, I suppose; always singing “Down at the old Bull and Bush”, or going foxhunting, or whatever we do.

Photo of Evan Harris Evan Harris Shadow Science Minister

I accept the Minister’s point that the amendment would bring manifestation into just one protected characteristic. I agree with her because, as she said, I pointed out in my contribution that the case law is clear. I was making the point that there might be some merit in having the statute clear because of the demand for that, since not every employer is able to access the case law as easily as they would the statute. It might be particularly relevant in this area, which is the only one, as far as I know, where it is such a live issue. No one can doubt that it is a live issue after the contributions that our witnesses and, indeed, other hon. Members have made. Is there some merit, then, in clarifying the statute, as well as what the Minister said about the law?

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office

No. Quite honestly, the hon. Gentleman is stretching it now. When we debate schedule 9, and whether the exceptions are wide enough or too narrow, the hon. Gentleman can raise those issues again—and I have a dreadful feeling that he will. However, the law is plain. The regulations have been interpreted by the court. That is how our legal system works. The rule is that sexual orientation includes manifestations of itself, and that would be unlawful discrimination. There is no need for more.

Photo of Evan Harris Evan Harris Shadow Science Minister

I note what the Minister said, and I am not surprised that she recognises what the law says, which is in agreement with the point that my amendment makes. That should give other hon. Members pause to consider what implications that has. I recognise her position that, just because something is made clear in case law, it does not have to be replicated in statute law. However, in defence of my approach, that is not always the approach that the Government take. They sometimes seek the opportunity to put case law into statute, as they quite rightly have with paragraph 2(8) of schedule 9. Nevertheless, on hearing what the Minister says I am quite happy to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.