Schedule 9

Equality Bill – in a Public Bill Committee at 5:15 pm on 23rd June 2009.

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Work: exceptions

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

I beg to move amendment 44, in schedule 9, page 181, line 33, leave out ‘proportionate’.

The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendment to leave out sub-paragraph (8), retains the status quo.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss the following: amendment 45, in schedule 9, page 181, line 37, leave out ‘proportionate’.

The addition of a new proportionality test narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the Amendment to leave out sub-paragraph (8), retains the status quo.

Amendment 42, in schedule 9, page 181, line 41, leave out sub-paragraph (8) and insert—

‘(8) Employment is for the purposes of an organised religion if—

(a) A has an ethos based on religion or belief, or

(b) the employment wholly or mainly involves—

(i) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or

(ii) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).’.

Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment would instead broaden the scope of the exceptions to benefit all religious organisations.

Amendment 43, in schedule 9, page 181, line 41, leave out sub-paragraph (8).

Sub-paragraph (8) narrows the scope of existing exceptions for religious employment. This amendment, in conjunction with the amendments to lines 33 and 37, retains the status quo.

Amendment 189, in schedule 9, page 181, line 42, leave out ‘wholly or’.

Amendment 46, in schedule 9, page 182, line 6, leave out from ‘requirement’ to ‘if’ and insert ‘to which sub-paragraph (2) applies’.

Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.

Amendment 47, in schedule 9, page 182, line 13, at end insert—

‘(2) This paragraph applies to—

(a) a requirement to be of a particular religion or belief;

(b) a requirement to be of a particular sex;

(c) a requirement not to be a transsexual person;

(d) a requirement not be married or a civil partner;

(e) a requirement not to be married to, or the civil partner of, a person who has a living former spouse or civil partner;

(f) a requirement relating to circumstances in which a marriage or civil partnership came to an end;

(g) a requirement related to sexual orientation.’.

Place the exceptions from paragraph 2 of Schedule 9 into paragraph 3, which has a broader framework. This would provide wider protection for the freedom of association of religious bodies.

Amendment 250, in schedule 9, page 182, line 14, at end insert—

‘4 Paragraph 3 does not apply when A is operating—

(a) on behalf of a public authority, and

(b) under the terms of contract between the organisation and the public authority.’.

An amendment to ensure that users of public service provided by an organisation with a religious ethos are not subject to conditions or requirements of that ethos.

It might be helpful to the Committee at the outset to indicate that many of the issues have been discussed already and that discussions will continue on the other groups of amendments. Therefore, hon. Members could perhaps use some discretion, and we might not have a debate on schedule 9 at the end if everyone is content.

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

I take it that that was an indication that we should not spend too long on the schedule and that I might not have as many interventions as I was anticipating.

Amendments 44 and 45 would take out the new test of proportionality that has been added to the sexual conduct exceptions for religious bodies. The test does not appear in paragraph 7(3) of the Employment Equality (Religion or Belief) Regulations 2003, which contains the previous incarnation of the exception. I might as well just throw in at this point that I do not speak on behalf of my party on this issue.

There is no reason for the Government to depart from the wording that was agreed with religious groups in 2003, which has been on the statute book for six years. Has there been a single employment tribunal case in which a Church has successfully relied on the exemptions given in 2003? Did any such cases involve discrimination that the Government believe to be disproportionate and worthy of being outlawed? I would be grateful if the Minister could answer those questions.

I have some notes from the Church of England, which gave evidence to us. It is probably not the most radical of the religious groups that we meet day to day. One paragraph of its notes states:

“It seems to us that this risks involving the courts and tribunals in having to address questions as to the precise nature and extent of particular religious doctrines, or as to precisely how strongly particular religious convictions were held. It would also mean that having done that, the courts would have to go on to determine what the effect of those doctrines or strongly held beliefs was in terms of the details of the requirements that needed to be applied in order to comply with them. This is exactly the territory into which the courts are both reluctant and ill-equipped to venture.”

Amendment 43 would remove the new definition of organised religion in paragraph 2(8) of schedule 9. The new definition, which, again, was not present in the wording agreed with the Churches in 2003, states:

“Employment is for the purposes of an organised religion only if the employment wholly or mainly involves...(a) leading or assisting in the observation of liturgical or ritualistic practices of the religion, or...(b) promoting or explaining the doctrine of the religion (whether to followers of the religion or to others).”

As the Minister said last Tuesday, any lawyer knows that as soon as we list anything, we narrow it. By listing what is regarded as organised religion, the Government are narrowing the exemption.

Photo of Vera Baird Vera Baird Solicitor General, Attorney General's Office 5:30 pm, 23rd June 2009

That is not what I said at all. I said that by putting a list in, we could, by implication, leave out things that people might have thought to be covered by the legislation. That is not necessarily narrowing the legislation. I hope that that is clear; if it is not, I will say it again in a different way. I made no such assertion.

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

I can respond by basically agreeing with the Minister. However, the fear is that the measure leaves out—we might not want to say that this is  “narrowing”—things that might otherwise be expected to be included. That is my point, and I think it is valid.

In Reaney v. the Diocese of Hereford, Stonewall financed a legal action by a homosexual man against the Church of England over his application to become a diocesan youth worker. The judgment seemed peculiar and fudged the issues. Mr. Reaney won on the particular facts of the case, but the employment tribunal rejected the argument that the exemption applied only to Church ministers, and ruled that Churches could also require a youth worker to adhere to their doctrines on marriage and celibacy. However, explanatory note 747 on page E182 insists that the new wording in paragraph 2 excludes youth workers. In that case, the new wording is intended to narrow the exception.

The Government—intentionally or unintentionally—have got religious groups very worried indeed. Both the Church of England and the Roman Catholic Church gave evidence saying that they believed that the Bill weakened protections that were designed to protect their fundamental human right to manifest their religion.

Let me make some comparisons that might help the Committee to understand better where the Churches are coming from. If a Greenpeace employee was found to be participating in the arms trade, surely he or she would be asked to leave, because anything else would deny a basic tenet of the organisation and expose it to ridicule. If the world knew that Greenpeace employed such a person, people would cease to support it. Similarly, if a political party researcher began campaigning for another party, surely that person would not keep their job. To allow someone so at odds with the party to remain in a position of influence would be a breach of the original party’s freedom of association.

There is something fundamental about working for an organisation with a strong ethos. This could apply to any of the protected characteristics, whether it is age, disability, LGBT status or anything else. There is an expectation that all staff should be signed up to and enthusiastic about an organisation’s direction. That affects the mood when staff come to work in the morning, how they chat in the staff room and so on. I am an accountant, but I have worked for nursing homes and housing associations. One would expect everyone in a nursing home, including the accountant, to be signed up to nursing and the welfare of the residents. Similarly, in housing, one expects everyone to be signed up to quality housing and the good of the tenants. In the same way, the Churches should not have to employ people who, through their lifestyle, repudiate important beliefs that the organisation exists to promote.

Amendments 42, 46 and 47 would widen the scope of the religious exemptions. In the Reaney case that I mentioned, the Diocese of Hereford was ordered to pay £47,000 for refusing to appoint to a diocesan youth worker position a man who had only recently ended a homosexual relationship and who said that he might enter into another such relationship in future. Everyone can see the difficulty in which that places the Church. The case shows that the existing exceptions are not sufficiently robust. My amendments demonstrate different ways of wording the exemptions to provide better protection for religious freedom of association.

Amendment 42 takes the religious ethos test from paragraph 3, which is a broader exception, and places it into the definition of organised religion. A body would  have to prove only that the employment was for the purposes of an organisation with a religious ethos. The test is acceptable to the Government in relation to religious discrimination, so why not in relation to other grounds? The approach would make it easier for religious bodies to prove that a particular post fell within the sexual conduct exception.

Amendments 46 and 47 take the list of activities exempted by paragraph 2 of schedule 9 and place them within the framework of paragraph 3. Again, paragraph 3 protects a broader range of posts. That is by far the neatest and most effective way of providing protection to religious bodies that want to maintain their beliefs in their employment policies. Some will say that both my approaches are too wide and would benefit organisations and jobs that they do not think should be covered, but we must be careful about telling religious organisations which posts are important to their religion and which are not. If they can pass the religious ethos test, we must leave it up to them.

I note that the Conservatives have tabled amendment 189, which would make the definition of organised religion marginally wider by tinkering with the “wholly or mainly” test. Their amendment highlights the arbitrary nature of the organised religion test. A youth worker who spends 49 per cent. of his time teaching doctrine is none the less not in a protected post, but if he spends 51 per cent. of his time teaching, he is, so a Church may be told by the state to employ as a teacher of their religion someone who rejects its teachings all for the sake of 2 per cent. of the worker’s time. The arrangement seems too arbitrary and uncertain.

There are too many hoops in the exceptions for Churches to jump through, even though they are designed to protect Churches’ fundamental human rights. I hope that the Government will think again about some of the issues.

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

The hon. Gentleman lays out a good case for a number of his amendments. As he mentioned, we tabled amendment 149, which would leave out the words “wholly or” from the measure. We chose it predominantly as a probing amendment to enable us to have this discussion, although he has tabled more substantive amendments. We have had discussions on this topic before, as Committee members will remember, and I want to test the Minister on two issues: what the Government’s intentions are, and whether the Bill implements them correctly. I then want to discuss whether the Bill deals with the issue adequately, although I shall do so only briefly because the hon. Gentleman addressed that satisfactorily.

Several hon. Members and I have held a number of discussions with some of the Church organisations and two issues have arisen. The hon. Gentleman has already alluded to the first, which is the narrowing of the definition of an organised religion under paragraph 2(8)(a) and (b). At the moment, the Government’s position in the Employment Equality (Sexual Orientation) Regulations 2003 does not attempt to define it at such a level. The then Minister of State, Lord Sainsbury of Turville, said in response to the debate on the 2003 regulations in the House of Lords:

“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.”—[Official Report, House of Lords, 17 June 2003; Vol. 649, c. 779.]

When we had such a discussion previously, there was no disagreement about those who are in a post of clergy where they are taking religious services. The issue was the width of the scope of paragraph 2(8)(b), which concerns

“promoting or explaining the doctrine of the religion...to others”.

We have had some discussion around whether it would cover those who, for example, were involved in promoting a religious organisation to the outside world and representing its case, for whom it would be significant that their public utterances about the things that were important to that religion or Church, and their behaviour, would be in line with the views of the Church. It clearly would not be convincing if they said one thing and did another.

Many Church groups think that the wording of the provision represents a narrowing that will rule out a number of the posts that are currently allowed under the 2003 regulations, which the Bill is effectively supposed to be carrying across. It would be helpful if the Minister could tell us about the translation of those regulations into the Bill, and say what was intended, so that we can see whether that has been the effect. Will she also set out what posts the Government think should be covered?

One of the things that has confused the situation is the explanatory notes, which talk specifically about a “church youth worker”. We have discussed whether the nature of the role of a church youth worker could be determined as

“promoting or explaining the doctrine of the religion...to others” as under paragraph 2(8)(b). We have also considered whether that type of post should be included, and we will welcome the Minister’s comments about that.

The second area, which the hon. Member for Glasgow, East touched on, is the proportionality test. A number of Churches and religious organisations think that that represents a further narrowing. It concerns the condition in sub-paragraphs (5) and (6) that when the “compliance principle” or the “non-conflict principle” are engaged, both must be applied only if doing so is a proportionate means of complying with the doctrine of the religion. That proportionality test is not present in the 2003 regulations. The Churches are concerned not because they want to act disproportionately, but because putting that in means that courts and tribunals will have to be involved in addressing questions about the nature and extent of particular religious doctrines and the way in which they work.

I raise that because when regulation 7(3) of the 2003 regulations was drafted, it seemed that the Government’s policy was deliberately not to impose a proportionality test. In the case of R (Amicus) v.Secretary of State for Trade and Industry in 2004, the witness statement filed on behalf of the Secretary of State explained:

“Regulation 7(2) simply sets out criteria of general application and leaves it to the courts and tribunals to determine in individual cases if those criteria are met. This was not done in relation to employment for purposes of an organised religion in regulation 7(3), because the Government was concerned it would lead to litigation in tribunals about the extent to which requirements dictated by doctrine or the religious convictions of followers could legitimately limit working for an organised religion, and to what extent those requirements, and by extension, the doctrine or convictions giving rise to them, could be said to be reasonable or proportionate. The Government was engaged in striking a delicate balance”— the Committee acknowledges that it is a balance—

“between the employment rights of gay and lesbian people, and the right of religious groups to freedom of religion. The Government took the view that it is not appropriate for courts or tribunals to make such judgments, and that the balance should be identified in the Regulations themselves.”

It would be helpful if the Minister commented on the judgment at that time, why the Government in effect have introduced the proportionality test and whether they recognise that it carries that risk—that it opens up to courts and tribunals the test of having to make judgments about individual religions. The hon. Member for Glasgow, East made a very good point when he said that those judgments are best left to the religions themselves, rather than being taken outside the religion and given to the industrial tribunal or the court.

Those are the two issues on which I wanted to probe the Minister and invite her to set them out clearly for the Committee, so that we can see whether the Bill does what the Government’s stated intentions are.

Photo of Evan Harris Evan Harris Shadow Science Minister 5:45 pm, 23rd June 2009

I have an amendment in this group, which I shall speak to briefly. I shall also comment briefly on the issues that have just been raised. I set out my views under an earlier clause. I thought that it was appropriate to do that because it is such a critical issue and I did not think that it was best dealt with by being hooked on to a probing amendment on “wholly or mainly” in the schedule. However, the hon. Member for Forest of Dean has brought the issues forward quite well.

My amendment 250 is a probing amendment to enable me to ask a specific question. Why does the Minister not consider it appropriate to provide a different test before religious organisations with a religious ethos are allowed to discriminate against their employees based on religion or belief when they are delivering a public service, compared with all other circumstances? I recognise and my party recognises that it is necessary to have the sort of exemption that we see in paragraph 3 of schedule 9 for religious organisations, but the balance is wrong when we come to the delivery of a public service, because there may be individuals delivering a public service and then the tender, the contract, for the service that they are providing is handed over to an organisation with a religious ethos. What protection do people who have never applied to work for that organisation, but find themselves taken over, as it were, by it, have against a religion test being applied to them when they are, yes, working for an organisation with a religious ethos, but doing a job that could equally well be done by a secular organisation, such as providing accommodation, care, homelessness provision or a number of other public services? They might even be doing the very important and obvious public function of arranging adoptions for children. I do not think that there can be more of a public function than that. If they were taken over, the concern would be, no matter how good they were at their job, that an occupational requirement would be made out.

I am asking whether the test needs to be higher when we are talking about public services. Otherwise, if more faith-based organisations deliver public services—it would be discriminatory to prevent them from delivering public  services—individuals seeking to work in that field might have a far smaller range of choices as to what jobs they can do and what employers they can work for if they are not religious or are of a minority religion or are not of the religion of the organisation delivering the public service. I hope that the Minister recognises that I accept the need for an exemption, but that there is a question in respect of the delivery of public services. I should be grateful if she would comment on that.

I turn to the issues raised by amendment 44, moved by the hon. Member for Glasgow, East. I shall leave the Minister to deal with the question of why “proportionate” was included. I argued previously that the directive requires tribunals and courts to have regard to proportionality when interpreting our legislation. I have said previously that the closer our legislation gets to the wording of the directive, the less room for doubt there will be.

Other than the caveat that I raised on paragraph 3, I pretty much support the wording of the schedule, which is why I did not table any significant amendments. They would have been needed if we were to have had the sort of debate that we had earlier. I hope that the Government will be robust not only on the reason for including “proportionate” but also on the question of why we need paragraph 2(8). As we said earlier, it exists to implement the Amicus judgment, which in turn makes it clear that our legislation is compliant with the directive. The Minister reassured me on that earlier; I hope that she will now reassure the hon. Member for Forest of Dean. Whether or not it is a narrowing of the terms of our legislation, it is not a narrowing of the law, because the law is what is allowed by the directive, as interpreted by the court case. The Amicus judgment was clear and welcome in that respect.

The hon. Member for Glasgow, East referred to the Reaney case. I ask the Minister to correct me if I am wrong, but I believe that it did not set a precedent as it was a first instance tribunal. What I say is based on what I have heard, but I believe that neither side was particularly happy with the judgment. Although the claimant won, I happen to think that it was unsatisfactory that the job described was one for which a wider exemption might have applied. Mr. Reaney won on the basis that he said that he was celibate at the time, or not practising, and that it was unfair, unreasonable and discriminatory to require him to give a commitment that would not have been asked of a heterosexual. However, I do not believe that it was a good judgment; I wish that it had been appealed—and successfully so—but both sides decided to cut their losses.

The example given in the explanatory notes refers to a church youth worker. Reaney was a diocesan youth worker, but the tribunal felt that there was more of a representative role in that case. It is worth reading the Reaney judgment. Given the job description and the CV of the person concerned, it was clear that he was a good youth worker. He happened also to be a Christian, but he was a good youth worker and the appointment committee said that he was streets ahead of all the other applicants—even knowing his sexual orientation and the fact that he had had a homosexual relationship in a previous job.

For positions like that, it does not seem right that the wider exemption should apply. Youth workers working for religious organisations throughout the country should  not have to quake in their shoes and worry that they are liable to be sacked if their sexual orientation comes to light should they meet someone, fall in love and want to have the same relationship with that person as heterosexuals would have—even though they are homosexual, and even though they are doing a good job.

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

The hon. Gentleman said that the youth worker “happened also to be a Christian”. A lot may hinge on that. For someone with a humanist or secular background, being a Christian is peripheral and only a small part of life. The problem is that for religious organisations, including churches, being a Christian—or a being Muslim or a member of any other religion—is absolutely central. It is not something that happens to be added on; it is central.

Photo of Evan Harris Evan Harris Shadow Science Minister

I apologise if I said “happen to be”; I did not think that I had. I accept that the requirement for that post was that the person should be a Christian. Clearly, such a religious requirement would apply under paragraph (3). There is no doubt that it is an organisation with an ethos, and one could argue that it is an occupational requirement. I have no problem about that advertisement saying “Christians only”. I hope that I have clarified that, and I am not seeking to make the point that it was not a genuine requirement, and therefore central. I am saying that it is possible to be Christian and gay. To discriminate against someone—we have heard this before—on the basis of their sexual orientation by saying that they are somehow outwith the doctrines of the religion and therefore fail a religious test is not satisfactory. The Minister assured me, although this gives me a chance to clarify the matter further, in answer to the point when I tabled a probing amendment, that there was some provision in the Bill that made it clear—it may be that it is just obvious—that if someone was discriminated against on the grounds of their sexual orientation or a manifestation of that where it is so closely connected that it is their sexual orientation, by definition, it could not be a religious criteria; it would be sexual orientation discrimination. If she could repeat that—she said it was something to do with schedule 23, but I cannot find it—I would be grateful. That is all I am going to say about the point made by the hon. Member for Glasgow, East, because we have thrashed out that argument on a number of occasions.

The only other point to make in respect of paragraph 2(8) is what will happen to church organists. It is the save-the-organist point that I want to make. It was raised earlier by people who have an interest in it. Curiously, it looks like—as they put it, for I do not think it is curious at all—youth workers will not be caught by the exemption. I am pleased that they will not, if that is the case generally speaking, unless the advertisement is written much more clearly in terms of promoting the doctrine of the religion than most youth worker jobs are. The issue is also whether it would actually catch the organist, because their work

“wholly or mainly involves

(a) leading or assisting in the observation of...ritualistic practices of the religion”.

It would be unfortunate if the wording was designed to capture people where the main part of their job was to play a musical instrument well, albeit with religious music.

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

What the hon. Gentleman is saying perhaps illustrates the point that I was trying to make. Trying to be too specific on the face of the Bill about the nature of the roles leads to such situations, where one would include the church organists, where actually, I would argue, what they do is not very important. We would then not capture someone who was involved, such as a youth worker with a significant amount of teaching. It would be better if the specific nature of the test was not there. In the definition, we would just leave organised religion in there, and it would be determined by the court or tribunal if it was an occupational requirement.

Photo of Evan Harris Evan Harris Shadow Science Minister

I disagree with the hon. Gentleman. The more specific it is, the less doubt there is. That is why I welcome the fact that it has been made more specific. The point that I am making is that even when it has been made more specific—not necessarily more narrow—in our legislation, it is not clear whether that definition captures people who I do not think ought to be caught.

I do not want the hon. Member for Forest of Dean to think for one moment that I accept that if one is teaching and is in a religious organisation, there is some sexual orientation test that is automatic. I understand that if one is proselytising, that can be a question. But promoting or explaining the doctrine is what matters, not the general teaching point of view. That implies that any role that involves young people, which automatically involves teaching, would be caught. I hope that that is not the intention of the schedule. It must not be its intention, because otherwise we would just have a no gay teachers situation, which, with the connotations, is unacceptable. I accept that the hon. Gentleman does not need to make them, but they are sometimes made in that respect. I urge all of us to be careful where we assume that teaching, rather than explaining or promoting the doctrine of a religion, is automatically caught.

There are just two other points that I would like to raise to avoid a stand part debate. That is to ask the Minister briefly why, in paragraph (1), in line 15, the language does not use the term “genuine occupational requirement”, but only “occupational requirement”. It would be sensible to use the language of the directive, because it is there.

On the same page, sub-paragraph (4), line 37, raises a couple of further issues. Why does the question of whether

“A has reasonable grounds for not being satisfied that the person meets” a requirement apply only to the

“requirement to be of a particular sex”?

The Bill states—rightly—that there are no ifs or buts. A person cannot say, “Well, he kind of looks male, so we’ll assume that she is not female and that therefore the provision does not apply”. Should that not also apply to age? A person has a specific age that should not be open to doubt.

Finally, on the same issue—to a certain extent—it is most unfortunate that sub-paragraph (3)(a), on page 180, in respect of a transsexual person, does not give any protection to someone with a gender recognition certificate. There is a starred but not select amendment on this  matter, so the Minister might have had some notice of it. It is very worrying that a person can have a gender recognition certificate stating very clearly their new gender and still be liable to be considered a transsexual on a spectrum without the protection that I thought that the Government would seek to provide. With those caveats and questions, however, I support the Government’s general approach, and I urge them to resist the lead amendment.

Photo of David Drew David Drew Labour, Stroud 6:00 pm, 23rd June 2009

I do not know whether I have said this already, but it is a delight to serve under your chairmanship, Lady Winterton. I rise with some trepidation, given the length of time that we have spent on this debate already. Let me say first, however, that given the shortage of organists in my church, I imagine that it would let anyone play its music, regardless of their religious beliefs. So if anyone would like to apply to my church, we would be only too grateful to receive them.

I want to make two quick observations. First, I do not think that exceptions make good rules here. Although I largely agree with the hon. Member for Glasgow, East, a couple of his examples demonstrate the difficulty in this area. It just so happens that one of the founding fathers of Greenpeace is now an avowed supporter of nuclear power—one Patrick Moore. That shows how people’s beliefs can change over time. When laying down general rules on organisations, therefore, we must consider that people’s views are not static. People do change their views.

I realise that we are talking principally about religion, but different examples can demonstrate the difficulties that arise over time. I shall give a personal example. A very good friend of mine was the most wonderful religious education teacher who just happened to be a long-standing agnostic. That was well known and accepted. In those days—I am going back rather a long time—RE teachers were supposed to be of the Christian faith. However, he taught it from his perspective and was able to hold his views somewhat in the background while teaching clearly and carefully what was deemed to be a very acceptable curriculum. That can be done, although it is very difficult—

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

I appreciate what the hon. Gentleman is saying; he is making a balanced point. However, does he agree that there is a slight difference between an RE teacher in a school, who should—I agree with him—give a balanced view of all religions, and somebody within a Church or a religious organisation, who would be promoting the ethos of that organisation?

Photo of David Drew David Drew Labour, Stroud

I would agree. I come to my second point. I am alarmed by the intolerance. I find it difficult to understand how someone who has a fundamental disagreement with the organisation from which they are seeking employment or membership does so from a position of almost trying to be a protagonist. In this day and age, people should be much more tolerant, and they should not try to undermine basic belief structures, whether religious or otherwise. Unfortunately, people seem to want to do so.

A lot of this—it may not be under the purview of the Bill—goes back to the fear, which is in some ways justified, that religious organisations with a clear view on adoption have, with the passage of time, been driven  out of adoption, if not quite entirely. They have had to almost de-religionise their perspective—sorry about my terrible use of the English language. They have moved out of adoption, which is sad, because they had a role to play. They had a clear perspective on delivery, and I do not understand why they have had to move out when others have been able to remain. There should be a degree of choice. There should also be tolerance of the way in which belief-based organisations deliver in the public sphere. We should not shut out everyone with such beliefs.

I will be interested to hear what my hon. and learned Friend the Minister has to say on making the situation clearer. I hope that we can encompass all beliefs within the normal sphere of opinion rather than narrowing things to such an extent that we eliminate those who have a view that is not entirely in line with everybody’s opinion, which I fear will happen. Those beliefs may still have a purpose. As a Christian, I believe that such organisations have a strong underlying ability to work well in areas such as adoption. They could also work well when it comes to employing Church workers, including—dare I say—the odd organist.

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

I will come back to the odd organist in a minute if I may.

Photo of David Drew David Drew Labour, Stroud

If the Minister wants to volunteer, she would be very welcome.

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

My hon. Friend would be in dire straits if I played the organ in his church.

Let me answer the three quick questions levelled at me by the hon. Member for Oxford, West and Abingdon. He asked why the word “genuine” is not in the measure. We had that discussion this morning: the word would not add anything and it will be a matter of fact to determine whether something is “genuine”.

The hon. Gentleman asked why paragraph 1(4) of schedule 9 refers to age as well as sex. Paragraph 1(1)(c) provides that the general occupation requirement exception applies either when the employee or job applicant does not meet the requirement or when the employer

“has reasonable grounds for not being satisfied that” they do. Paragraph 1(4) provides that in the case of a requirement to be of a particular sex, the exception applies only when the employer or job applicant does not meet the requirement. We do not believe that it would be difficult to establish whether the employee or applicant is a man or a woman.

Incidentally, the hon. Gentleman was concerned about people who have gender recognition certificates. A transsexual person with a certificate is going to be treated, as they must be for all purposes, as being of the acquired gender. That is provided for by section 9(1) of the Gender Recognition Act 2004.

Coming back to the schedule and the question of the requirement to be of a particular age group, there might be some argument about the age of the employee or applicant. If he or she refuses to disclose his or her age, it is unlikely that the employer could prove that they do not meet the requirement, because the age would usually be in the employee’s exclusive knowledge. In that case, the employer may be able to show reasonable grounds for not being satisfied that the employee or applicant meets the requirement. I hope that that is good enough.

Amendments 44 and 45 would remove the express requirement for those relying on paragraph 2 of schedule 9 to show that applying a relevant occupational requirement is a proportionate way of complying with a religious doctrine or of avoiding conflict with a strongly held religious conviction. It is true that the existing exceptions do not contain an express requirement of proportionality. It is also true that the hon. Member for Oxford, West and Abingdon has put his finger on the point that courts must interpret them as though they did, because that test is put in by the relevant European directive, so we decided to spell out the requirement in paragraph 2. It is implicit anyway; we are not narrowing it. Not doing that would also put paragraph 2 out of step, because we have harmonised the wording of all other exceptions for occupational requirements.

I accept that a restriction on employment by reference to the doctrines of a religion or strongly held convictions can pursue a legitimate aim. The existing exceptions spell out the express provisos in the relevant European directives that the discriminatory requirement must meet a legitimate objective, but it must be proportionate. Proportionality is obviously fact-sensitive; it must be assessed on a case-by-case basis, which seems entirely reasonable to us.

I rather differ from the hon. Member for Oxford, West and Abingdon, and I think that I derive some support from my hon. Friend the Member for Stroud in pointing out the difficulties with being very specific and thinking that it is better for issues to be a question of fact. Would a youth worker be covered by an occupational requirement? Similarly, would an organist? It would be a question of the facts in the particular case, would it not? One can imagine that a republican organist might be able to play “God Save the Queen” and so not need the commitment.

In each case, it would be a question of fact. It is better not to be specific, because it is a delicate area, and it is easy to fall down on the wrong side of what most people would think reasonable. Many of the cases will be fact-sensitive. I regret slightly the intrusion of the youth worker into the explanatory notes. It is too wholesale a provision. We might consider whether it needs replacing.

Photo of Evan Harris Evan Harris Shadow Science Minister

For what the explanatory notes are worth, I hope that the Minister keeps the youth worker in. I urge her not to remove it. She used the example of a republican playing “God Save the Queen”, but that would amount by analogy to a religious test. That is fine—I do not think that there is a problem with requiring a church organist to be a member of the congregation and therefore of the right religion—but we are talking about sexual orientation and other protected characteristics. I therefore hope that she does not rely on her analogy as the appropriate one. There is a concern that organists and other people involved only in ritual, not promotion, might unfortunately be caught by the provisions.

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

One would hope not. As I said, they are intended to operate on a fact-sensitive basis with the tests of proportionality and reasonableness. Is there some fear perhaps that a gay organist would not play at a marriage ceremony or something similar? I cannot imagine that they would take that view or that the Church would exclude someone who is gay from doing so on the basis that it was somehow distasteful. My view is that we are getting the balance right. The  more that we discuss the issue—we have discussed it quite a bit—the more it seems better to leave each issue to be fact-sensitive and lay down the framework as we have.

The effect of amendment 42, tabled by the hon. Member for Glasgow, East, would be to allow not just organised religions such as Churches but all religious organisations, including faith schools, to rely on the exception in paragraph 2. For example, a care home run by a religious foundation would be allowed to justify refusing employment to a care assistant who was divorced because their wife had left them, or to a nurse who was a civil partner.

However, paragraph 2 and the existing exceptions that it replaces apply only to employment for the purpose of an organised religion, not a religious organisation. In the Amicus case, which has been referred to, the court accepted that employment as a teacher in a faith school, for instance, is likely to be for the purposes of a religious organisation, but it is not for the purposes of an organised religion. There is a distinction between the two. A religious organisation could be any organisation with an ethos based on religion and belief, for which there is a specific exception in paragraph 3. Employment for purposes of an organised religion clearly means a job, such as a minister, and it is that to which Lord Sainsbury of Turville was referring; he was quoted by the hon. Member for Forest of Dean.

Photo of John Mason John Mason Scottish National Party, Glasgow East 6:15 pm, 23rd June 2009

I think we all agree that there is a difference between a religious organisation and an organised religion, although I hope that the Solicitor-General accepts that it, too, is a complicated area. Sometimes, an organisation could represent, say, half a dozen smaller churches so, effectively, although it is not a church, it is very much a representative speaking for churches and we would expect at least the leaders of the organisation to be signed up to the beliefs of those churches.

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

I accept that the matter is complicated. The organisation might be made up of organised religions, in which case we are in deep trouble. The hon. Gentleman has made a point. I do not doubt that it is a complex area, which is why it is better to lay down a framework and not be specific as we are invited to be from time to time by the hon. Member for Oxford, West and Abingdon and to leave distinctions to the courts.

Amendment 43 would reduce the clarity of the exception under paragraph 2 of the schedule by removing the definition under sub-paragraph (8) of employment

“for the purposes of an organised religion”.

The effect of amendment 189 would be to exclude from that definition those whose employment “wholly” as opposed to “mainly” involves duties between one of the definition’s two limbs. The existing exceptions about employment

“for the purposes of an organised religion” do not contain the definition of what that expression means. However, contrary to what has been suggested, the new definition does not narrow the scope of the existing exceptions.

There has been some confusion about what is meant by

“for the purposes of an organised religion”, and we have therefore included a definition of the term to clear up misunderstandings, to save courts and tribunals having to go into areas of potential religious controversy and to reduce the risk of the exception being misused. The definition is designed to make it clear that the exception applies to a very narrow range of employment, such as ministers of religion plus a small number of posts outside the clergy, including those that exist to promote and represent religion. I have found examples of that difficult to put forward. That was again what Lord Sainsbury had in mind when he talked about the existing exemption under regulation 7(3) of the Employment Equality (Sexual Relations) Regulations 2003. What he said was entirely consistent with the Amicus case, which was that regulation 7(3) was very narrow and affords an exception only in very limited circumstances.

Amendments 46 and 47 would allow employers with an ethos based on religion or belief to discriminate in relation to work by applying the requirement not only to be of a particular religion or belief, but a requirement under paragraph 2(4) of the schedule. For example, a hospice run by a religious order would be allowed to justify refusing to employ someone of that religion who was married to a divorcee. By contrast, paragraph 3 of schedule 9 allows employers with an ethos based on religion or belief to discriminate in relation to work by applying only a requirement to be of a particular religion or belief, and then only if that is an occupational requirement. That paragraph provides an exception that organisations with a religious ethos may rely on, in addition to paragraph 1 of the schedule. That additional exception recognises that such organisations need to be able to preserve their religious ethos and that is why it covers only the protected characteristic of religion or belief. Paragraph 3 of the schedule is designed to replicate the effect of the current exception under regulation 7(3) of the 2003 regulations derived from the framework directive.

Amendment 250 would prevent organisations with a religious ethos that are working on behalf of public authorities using the exception under paragraph 3. That exception allows religious organisations to require employees to be of a particular religion if it is an occupational requirement. To put it in a nutshell, the Government do not want to interfere with the religious ethos of the organisations, even though they deliver public services. It is rather, as the hon. Member for Glasgow, East is frequently driving at in many of his amendments and new clauses, the diversity of delivery. We think that we have hit an appropriate balance.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am disappointed with that answer, because I asked the Minister what happens to people who find themselves employed by a religious organisation—I use that term to capture the idea of organisations with a religious ethos. She might say that the occupational requirement is the protection, because that has to be genuine, but during her response she said that she understood that the purpose of the provision was to allow such organisations to maintain their ethos. If an organisation says, “We cannot maintain our ethos unless everyone in our organisation is of this religion”, it could say—I hope that she will say that they cannot—that that creates an occupational requirement. I do not accept that everyone has to believe the same thing for an  organisation to have an ethos. That is not the case in schools, thank goodness, although it sometimes feels that way. Will the Minister clarify those two things: the transfer of employment and whether an occupational requirement exists by definition?

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

It does not. As I said before, it would be a question of fact in each case—whether something that had been done by someone who was not of that faith after a takeover by some religious organisation had been transformed into a genuine occupational requirement for the purposes of that religion. That would be a question of fact. Is it not right, ideally, that it should be a question of fact?

Photo of Evan Harris Evan Harris Shadow Science Minister

My concern remains. The Minister said that it was a question of fact whether a new employer that is a religious organisation could say that there is a new occupational requirement. However, if the job is broadly the same, is it her contention that merely changing the employer, who may feel that there is a need to preserve the ethos by ensuring that everyone is a Christian, for example, creates an occupational requirement that did not exist before? That is my concern and I was hoping for some clarification.

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

I do not think that it is difficult. It is a question of fact. If the nature of the job has changed so that it has a religious component, perhaps there would be a genuine occupational requirement. However, if the job is the same, and the takeover did not require any adaptation to the ethos of the new owner, then there probably would not be. On such a theoretical example, it is impossible to say yes or no. I cannot see how the hon. Gentleman will be assisted by an answer. It seems pretty straightforward that the circumstances would have considered to see whether the religion tried to say that there was an occupational requirement, whether that could be genuine in the context of what had gone before, or whether it might be because something in the way that the service is delivered by that religious body requires the religious component. Therefore, as I said before, it is a question of fact.

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

The idea that a religious organisation would employ only people who belonged to that religious group is not our normal experience. My experience of Catholic schools in Glasgow is that only the promoted posts would insist on being Roman Catholic. The other teachers and staff could be of any religion or none.

The point about a new employer works both ways. It has been suggested that someone goes from being in secular or humanist employment to being in religious employment. I do not know where the British Humanist Association fits in as we noticed in the evidence sessions that it counted itself as a religion when it suited it to do so. An employee could also have a problem going from an organisation with a more religious ethos to one with a humanist or secular ethos that was unsympathetic. Such situations will always be handled delicately and we need to be aware of that.

Photo of Evan Harris Evan Harris Shadow Science Minister

That person would be protected by the employment regulations that protect people from discrimination on the basis of their religion or belief. There is no exemption sought by the secular world to specifically discriminate against religious people—  regulation 7(3)(a) in the old employment directives. So it is not equal in that way. It is a specific exemption to be used by religious organisations, not secular ones. I hope that the hon. Gentleman will accept that.

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

My point was that there is a problem both ways. For example, there may be a problem for a nurse who had been working for a religious nursing home and was used to praying for the patients who then had to switch to a nursing home where they were not allowed to do that. Clearly, that would work the other way as well.

I agreed with some of the points made by the hon. Member for Stroud, such as tolerance, choice and including different views. That is what I am looking for in all the amendments I have tabled. I am disappointed that the Solicitor-General is not taking on more of the content of the amendments. Even though we all support proportionality, to take it out would have resulted in better law. However, I am encouraged and appreciate the wording that she used. She said that it is a delicate area and that perhaps the youth worker was not the best example. She also talked about getting the balance right and diversity of delivery, which are the kind of reassurances that I and other organisations are looking for. I thank her for that. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 68, in schedule 9, page 181, line 36, leave out ‘work’ and insert ‘employment’.

This amendment would ensure that paragraph 2 of Schedule 9 refers consistently to “employment”.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss Government amendments 69 to74.

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

These are technical amendments and minor drafting oversights.

Photo of Evan Harris Evan Harris Shadow Science Minister

To remind myself that I wanted to raise a question on this, I tabled an amendment that I knew would not be selected. It was an amendment to the Government amendment and I wanted to give advance notice to the Minister that I wanted to query one area. Why did she choose in amendment 69—the others in the group are consequential to that—to extend an exemption to cover section 52(2)(d), which talks about subjecting (d) to any other detriment. My understanding is that it is unusual to give carte blanche through an extension. For example, clause 80(2)—the part of the Bill dealing with education—states:

“The responsible body of such a school must not discriminate against a pupil...

(f) by subjecting the pupil to any other detriment.”

Although many of those provisions are lifted in the schools exemption in schedule 11, the specific provision that the pupil should not be subjected to “any other detriment” is not lifted in the religious exemption. I remember that the Government amended the Equality Act 2006 to ensure that there was not the ability to subject the pupil to any other detriment. Therefore, more explanation is needed about why the protection that would otherwise exist from section 52(2)(d) not  being included in the exemption is now proposed to be included. I do not have a problem with the rest of the increased scope that the Government are proposing in their amendments.

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

It is an amusing idea that tabling an amendment that is not selected is a form of giving notice to the Government. Paragraph 5 of schedule 9 allows an employment service provider to restrict access to the service that they provide to people with a particular protected characteristic if it is an occupational requirement for the work to which the service relates. Clause 52(1) and (2) set out how an employment service provider must not discriminate in providing services. The category of “any other detriment” in subsection (2)(d) is residual, sweeping up anything that does not fall within the preceding circumstances. If we accept that an exception is appropriate in principle, it should apply to all circumstances giving rise to liability.

An employment service provider should be able to align services with the lawful needs of the employer and the requirements of the jobs to which its services relate, as is currently the case. It makes no sense to pick and choose to what circumstances the exception may apply in that context. That would only encourage claimants to structure their allegations so as to bring no claim within what is intended to be a residual category to avoid applications of the exception. I hope that that is a satisfactory explanation.

Photo of Evan Harris Evan Harris Shadow Science Minister 6:30 pm, 23rd June 2009

I am glad that the Minister had something ready to read out in relation to my point. Sometimes—I accept that this is not true in this case—Government amendments are tabled late in the day and a starred amendment is the only way to give notice that I want to raise a point on them, other than to make a telephone call to the Minister’s team, which I will be happy to do in future if tabling a starred amendment offends her. I will have to read what she has said carefully, either on the record or, indeed, now, but I have no further objections to the group of amendments.

Amendment 68 agreed to.

Amendments made: 69, in schedule 9, page 182, line 26, leave out ‘52(1)(b) or (c) or (2)(a) or (b)’ and insert ‘52(1) or (2)’.

This amendment would expand the scope of the exception in paragraph 5(1) of Schedule 9 (permitting discrimination in relation to work for which having a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.

Amendment 70, in schedule 9, page 182, line 30, after ‘52’, insert ‘(1) or (2)’.

This amendment would limit the exception in paragraph 5(2) of Schedule 9 (permitting discrimination in relation to training for work for which having a particular protected characteristic is an occupational requirement) so that it applies to discrimination only and not harassment or victimisation.

Amendment 71, in schedule 9, page 182, line 33, leave out ‘52(1)(b) or (c) or (2)(a) or (b)’ and insert ‘52(1) or (2)’.—(The Solicitor-General.)

This amendment would expand the scope of the exception in paragraph 5(3) of Schedule 9 (permitting discrimination in reliance on a statement that a particular protected characteristic is an occupational requirement) so that it applies to all circumstances in Clause 52(1) or (2) giving rise to liability.

Photo of David Drew David Drew Labour, Stroud

I beg to move amendment 184, in schedule 9, page 183, line 25, leave out paragraph 8.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

With this it will be convenient to discuss amendment 185, in schedule 9, page 183, line 35, leave out paragraph 9.

Photo of David Drew David Drew Labour, Stroud

I unashamedly have taken the amendment on from my hon. Friend the Member for Gateshead, East and Washington, West (Mrs. Hodgson). I am firmly of the opinion that she entered the Government’s Whips Office as a result of her tabling the amendment, so I look forward to my own preferment in due course as a result of bravely treading where she has left off.

This is an important issue, and I hope not to delay the Committee for too long with a proper debate about the lovingly called national default retirement age. The amendment, which was tabled with the support of the Liberal Democrats, would remove the NDRA, and I will happily look at the implications of that. I recall a gentleman coming to see me at my constituency surgery around six years ago begging me to intervene in his case. He had achieved his ultimate ambition of getting a job with the Department for Environment, Food and Rural Affairs at the age of 63. The job was that of an animal control officer, which is not necessarily my idea of a nice job, but it was what he wanted to do, and he wanted to continue to do it. At 63 years of age, he was told by his employers that he could expect a very short time in the job. He was upset because he had hoped that he could continue for some time, not least because it was the first job he had ever had that paid a pension. That says something of what life is like even in the 21st century. I managed to get an extension of his working life to 67 but in due course he was asked to retire. Even that short time ago, that seemed to be the norm. Amendment 184 tries to remove the notion of compulsory retirement and amendment 185 would require notice to be given to someone that they will be compulsorily retired at least six months before they are 65. I hope that the amendments might become irrelevant because of an ongoing court case. My hon. and learned Friend the Minister may be able to say some things about that.

The Employment Equality (Age) Regulations 2006 ensured that people could not be discriminated against on the basis of their age in employment and occupation unless it could be objectively justified. Regulation 30 introduced the idea of a national default retirement age as an exception to the general rule of non-discrimination on grounds of age. That allows employers to operate a mandatory retirement age of 65 or over, allowing them to terminate the employment of a member of staff on the grounds of age. Employers can also refuse to recruit people over the age of 65, and that has been laid out in schedule 9 of the Bill. Before the law came into forces, a number of organisations, principally Age Concern, took a view. I declare an interest as a trustee of Stroud Age Concern. One has to play one’s cards close to one’s chest as we are not all that far away from the dreaded age of 65. I also think it is interesting that we can force our employees in the Houses to retire, when MPs do not face a similar prospect. Only the electorate can do that to them.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

My hon. Friend makes the point that MPs cannot be forced to retire, but would it not be  better if we were? It would provide opportunity for young, dynamic people to move into constituencies.

Photo of Ann Winterton Ann Winterton Conservative, Congleton

Order. I ask the hon. Gentleman to ignore that intervention. It was way out of order.

Photo of David Drew David Drew Labour, Stroud

I do not know whether that was on the grounds of sexism or ageism, but I will take your guidance, Lady Winterton, and carry on.

The charity’s position is that the regulations are unlawful, both by introducing the NDRA and by giving employers far too much scope to introduce other age-based rules in the workplace. On the basis of that, the case was referred to the European Court of Justice in 2007. The final ruling of the Court on 5 March 2009 stated that the UK’s retirement laws will only comply with the EU directive if they have a legitimate aim related to employment and social policy rather than simply to reduce costs for individual employers. The Court went on to emphasise that the UK Government will have to meet a high standard of proof in demonstrating that their policy aim is legitimate. The case is currently adjourned, as my hon. and learned Friend knows. We will receive the final verdict of the High Court hearing on 16 and 17 July 2009. It may be that what I am doing will be deemed irrelevant, because the High Court could say that we have to bring UK law in line with the EU. Much as I do not like saying such things, perhaps the EU could ride to our salvation.

Why is the issue important? In these days of fairness, justice and equality, it seems unfair that people approaching or at the age of 65 are always the ones who have to be made redundant on the basis that they should be retiring anyway. The issue is particularly important at the moment, with the recession taking hold. We all know and, indeed, have cases in which people are deemed to be expendable because of their age, yet they are often the most valuable people in their workplace. They have a lifetime’s experience of employment, with all the expertise that goes with that. The situation seems very unfair.

The position also seems to be completely contrary to the Government’s aims of encouraging us to retire later and therefore not to take our pension until later. I am not here to advocate the policy of eradicating retirement, much as the Government might think that that would be a jolly good thing because of all the money that it would save. At the same time, we are in the era of giving people some choice, and the Government would be keen if people wished to continue working and to forestall the payment of their pension.

Although the business lobby has misgivings, it is not entirely against the idea that there should be some debate and clarity, and, indeed, where such cases exist, individuals should be allowed the freedom to keep working. However, according to the Bill, they will not be able to do so. I am pleased to say that public opinion is ahead of us in Parliament, let alone ahead of the Government, and there is a growing swathe of opinion that it is right and proper for people to have the opportunity to continue working.

Mr. Harperrose—

Photo of David Drew David Drew Labour, Stroud

I give way to my near neighbour.

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

We would be very near neighbours if it were not for the River Severn, which divides us. The hon. Gentleman implied that the measure will prevent people from being kept in employment. All it says to employers is, “If you want to get rid of someone at 65 because that is your mandatory retirement age, you’ll able to do so.” It in no way stops them keeping someone in work for as long as they want. If that suits them and suits the employee, there is nothing in the Bill that stops them doing so.

Photo of David Drew David Drew Labour, Stroud

I hear what the hon. Gentleman says but, as so often with these things, it may be a question of perceptions, rather than the actual wording. He will have had cases, as we all have, in which there is an obligation, almost, to look at the oldest person in the work force, who may be close to retirement. Those people come under enormous pressure to be the sacrificial lambs when it comes to redundancy. That may well be something that that individual would welcome. However, I have always been worried that with the mania for early retirement, there is a cost that will come home to haunt us in due course. The corollary of that is that if people wish to keep working for longer and their employers see that as a jolly good thing, we should give every encouragement for that to be the case, yet what we face is at least the notion—I will not say that it is necessarily always the reality—that we have a national default retirement age of 65.

The Government may have to resolve the issue themselves as a result of the High Court ruling, but it would be good to hear what the Minister has to say now. As always, I am trying to be helpful, to move with the spirit of the times and to see whether we can resolve the issue so that there is not any indirect ageism, whether we are talking about the perception that people have to retire at that age or whether it is stronger than that and the reality is that that is what happens. That is why I do not mind at all taking over from my hon. Friend the Member for Gateshead, East and Washington, West. It is good to have some support from the Opposition, and perhaps even Labour Members, on an important issue that could slip under the radar unless it is debated in Committee.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families) 6:45 pm, 23rd June 2009

I will be brief because I think that the hon. Gentleman has made almost all the points I would like to make. However, I shall use this opportunity to speak because the measure flies in the face of the intent of the legislation. As the hon. Member for Forest of Dean said, the provision is not mandatory; it simply makes it legal for an employer to retire somebody without consequences. The measure is an exception in the Bill and it should not be an exception. One of the problems with centring the measure around a particular age is that it creates the attitude around that age that it is the end of the useful working period of somebody’s life. That will therefore lead to discrimination and enable people to use that exception to terminate people’s employment.

Photo of Diane Abbott Diane Abbott Labour, Hackney North and Stoke Newington

I listened with interest to what my hon. Friend the Member for Stroud said. He talked about perception. We are in a Bill Committee and we have to rest our arguments on the letter of the law. There is nothing in the law as it stands to prevent an employer  who wants to keep a member of staff on after 65 from doing so. My hon. Friend’s speech gave a different inference, but the letter of the law does not prevent employers from keeping on people after 65. What is more, many employers do—particularly when people have specific skills or experience. Some employers, such as the retailers Asda or B&Q, specifically recruit older people.

I am concerned about pretending that an employee of 70 functions in exactly the same way as an employee of 17. There is a case for mandatory retirement for staff after 65. Such a measure would be a piece of modernisation. During the Committee, it has been unusual for me to find merit in employers’ arguments, but I do find merit in their arguments on this matter. Even as we speak, many employers keep on people over the age of 65. I am concerned that if we do not think this through, under the guise of ending discrimination on age we will make it harder for younger people to get their first job.

I speak as somebody whose bias is all the other way. I am closer to 65 than to 17. The last person in the world to accept that they are not functioning the way they were when they were 17 is the person who is approaching 65. The current situation works well and it does not prevent employers from employing anyone beyond the age of 65 if they wish to do so. We should think carefully before altering that situation.

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

I am pleased that my hon. Friend the Member for Stroud has raised the issue. There have been some interesting contributions—not least the last one. Despite what my hon. Friend the Member for Hackney, North and Stoke Newington said about the need to bring young people on, even a default retirement age of 65 looks quite young now because 65-year-olds are not, by and large, failing in the way that she points to. That is perhaps not the point here, but I suspect that it is why this has become almost a totemic issue for the age lobby. People seem to be cut off while they are still in what they and other people might call their prime.

That default retirement age came in with some 2006 regulations that delivered significant other benefits—for example, upper age limits on unfair dismissal and redundancy were abolished, and company retirement ages lower than 65 were put up to 65, unless the reason for retaining a lower one could be objectively justified. Schedule 6 to the regulations contains a statutory procedure that includes a right for an employee to request work beyond the age of 65, or the normal retirement age if higher. That has been referred to by my hon. Friend the Member for Hackney, North and Stoke Newington and the hon. Member for Forest of Dean. One of the aims was to strike a balance between tackling the age discrimination as it arises for individuals and allowing businesses to operate productively but fairly.

An obvious point is that that is a default retirement age, not a mandatory retirement age. However, the Government provided for the age on the basis of the evidence available in 2006. We have recognised that circumstances can change and we have made a public commitment, whatever happens, to review the default retirement age in 2011. As my hon. Friend the Member for Stroud said, there might be need for action earlier than that. The case brought by Heyday, which I think is the trading arm of Age Concern, went to the European  Court, which held that the default retirement is available, but only if it can be justified by a legitimate social policy objective.

The case was sent back to the national court to determine whether the legislation in the UK accords with such an aim and whether the means chosen by the legislation were appropriate and necessary to achieve that. The Court said that establishing that would require a high standard of proof.

The case goes back to the High Court in July, but an immediate outcome is unlikely. It is much more likely that it will be autumn before the High Court delivers its judgment. If the Court decides that the default retirement age is not justified—or, rather, was not in 2006, which is the precise question—the Court is likely to make a declaration to that effect but not to strike out the regulation straight away, we think, or rather we hope. That would give us time to deal with all that follows and give business time to adjust to the changes.

In no sense do I brush aside the importance of the issue in inviting my hon. Friend to withdraw his amendment. What happens next will be determined by the case.

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

The Solicitor-General highlights two different issues that have come up. The first is about a default retirement age—that concept—and the second is about whether 65 is the right age. The hon. Member for Hackney, North and Stoke Newington suggested and immediately leapt upon 70. Something that may be more sensible and which the Minister could think about for discussion on Report is whether, even if the default retirement concept stays, the actual age might be better addressed in regulations, rather than in the Bill.

The issue might need to be addressed because of the court case, but also may well be something that changes over time. Given that Government policy is to change the state pension age—we already know that that is in progress—it might be sensible to keep the age under review even if the concept of the default retirement age were to stay in law.

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

I can see that argument. It certainly occurs to me, as I made clear, that 65 is now quite a young age for such a provision. What I suppose would be of concern, even with a different age limit, was whether it was not simply ageist to go on using the person’s age, which is quite different from their ability to do the job, as a way to get rid of them. However, I am told that we could change the default retirement age through regulations if we needed to do so, using section 2(2) of the European Communities Act 1972, so we do not need to put that in afresh.

Photo of David Drew David Drew Labour, Stroud

That was a useful debate. I know that we have a slight difference over the age profile, but the debate is one that needs to be aired. I hope that that issue will be clarified when we get the Court judgment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families)

I beg to move amendment 246, in schedule 9, page 184, line 39, leave out paragraph 11.

An amendment to prevent discrimination in the level of minimum wage based on age.

The amendment follows the theme of whether it is justified to exempt young people so that they could have differential pay rates. My understanding is that as of 1 October 2008, there are three categories of hourly rate—£5.73 per hour for workers aged 22 and over, a development rate of £4.77 per hour for workers aged 18 to 21, and £3.53 per hour for all workers under the age of 18 who are no longer of compulsory school age.

I have long thought that the variation in the minimum wage between 16 and 18-year-olds was iniquitous because the cost of things remains the same whether someone is 16 or 18. A person can get married at 16. Loaves of bread cost the same whatever a person’s age. Therefore, the variation is totally discriminatory. I thought that the principle was equal pay for equal work. I do not fully understand why we allow such discrimination when in all other cases we say it is wrong to discriminate. I would like the Minister to justify the exemption.

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

Removing the youth minimum wage rate would adversely affect employment levels for young people. Unemployment rates are higher for young people and employment rates lower. Both are far more sensitive to the economic cycle. We believe that continuing to participate in education or training until at least 18 is in the long-term best interests of people, but it is important that they have chosen to work rather than stay in education, do not lose their jobs or find it harder to access the important employment opportunities that get them into the world of work.

The exemption in paragraph 11, to which the hon. Member for Hornsey and Wood Green has addressed her amendment, will not allow an employer to pay different rates to employees who are within the age bands—between 16 to 17 and 18 to 21. We rely on the independent Low Pay Commission, whose report said:

“Young people have continued to do less well in the labour market than older workers and are particularly vulnerable in an economic downturn. Therefore, we believe that lower National Minimum Wage rates for young people are still justified in order to protect employment and at the same time reflect the training element attached to younger workers.”

Photo of Lynne Featherstone Lynne Featherstone Shadow Minister (Children, Schools and Families)

I understand the argument. The Solicitor-General could say that women are paid poorly but if their wages were to rise they would have trouble finding part-time work. That argument could be extended to any group. One might believe that there should be equal pay, but because a particular group is vulnerable in a sensitive marketplace, they can be discriminated against and paid less. I understand the argument, but it is not one to which I am overly sympathetic. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: 72, in schedule 9, page 188, line 17, at end insert—

‘( ) section 38(1) and (3);’.

This amendment would bring Clause 38(1) and (3) within the scope of paragraph 19(1) of Schedule 9. A principal would not then be liable under Clause 38 for discrimination or victimisation relating to the provision of a benefit, facility or service to the public (as in existing law).

Amendment 73, in schedule 9, page 188, line 26, at end insert—

‘( ) in relation to section 38(1) and (3), the other contract workers supplied to the principal;’.

This amendment would provide that “comparable persons” means other contract workers supplied to a principal, when determining whether provision of a benefit, facility or service by a principal to a contract worker differs in a material respect for the purposes of paragraph 19(3)(a) of Schedule 9.

Amendment 74, in schedule 9, page 188, line 32, at end insert—

‘( ) the terms on which the principal allows B to do the contract work,’. —(The Solicitor-General.)

This amendment would provide that “B’s terms” means the terms on which the principal allows a contract worker to work, when determining whether the provision of a benefit, facility or service by the principal is regulated by B’s terms for the purposes of paragraph 19(3)(b) of Schedule 9.

Schedule 9, as amended, agreed to.

Sitting suspended.

On resuming—