Schedule 23

Equality Bill – in a Public Bill Committee at 1:15 pm on 2nd July 2009.

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General exceptions

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

I beg to move amendment 58, in schedule 23, page 235, line 20, leave out sub-paragraph (2).

Allows commercial religious bodies to benefit from exceptions covering religion and sexual orientation, so long as they also fit within paragraph 2(1).

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following: Amendment 295, in schedule 23, page 235, line 20, leave out ‘sole or main’.

Amendment to probe the question of whether organisations which have a commercial sideline are free to discriminate in that commercial activity.

Amendment 296, in schedule 23, page 236, line 5, at end insert— ‘and,

(c) where the service provided is not a commercial activity.’.

Amendment to probe the question of whether organisations that have a commercial sideline are free to discriminate in that activity.

Amendment 59, in schedule 23, page 236, line 18, leave out sub-paragraph (10).

Religious groups that provide services on behalf of public authorities (e.g. Roman Catholic adoption agencies) are allowed to discriminate on grounds of religion but not sexual orientation, the amendment would allow religious groups to discriminate on grounds of sexual orientation where they can show their faith requires it.

Amendment 305, in schedule 23, page 236, line 18, leave out from ‘anything’ to end.

This is to prevent organisations discriminating on the grounds of sexual orientation when performing a public function in the provision of premises or in Associations.

Amendment 251, in schedule 23, page 236, line 19, after ‘orientation’, insert ‘or religion or belief’.

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

I thank you, Mr. Benton, for the opportunity to be a part of the Committee under your chairmanship. I will be speaking to my final amendments in the area of religion, so hopefully we will not have many more debates.

Schedule 23 deals with exceptions from the ban on discrimination in the provision of goods, facilities and services. There are exceptions for acts of the Executive in paragraph 1; organisations relating to religion or belief in paragraph 2; single-sex accommodation in paragraph 3; and training for people from outside the European economic area in paragraph 4. There is no dispute over the need for exceptions; the question is how far they should go.

My amendments 58 and 59 aim to widen the scope of the exceptions in paragraph 2 to include some religious organisations that would otherwise be excluded. Like other exceptions, paragraph 2 is hedged about with conditions that religious bodies must fulfil before they can benefit from the exception. According to paragraph 2(1), they must exist to

“practise... advance... teach... a religion or belief... or... foster... good relations between... religions”, or to enable people to receive services “within the framework” of that belief. Limitations on religious grounds can be imposed, under paragraph 2(6), only if it is

“because of the purpose of the organisation” or to avoid religious offence. Limitations on sexual orientation grounds can be imposed, under paragraph 2(7), only if

“it is necessary to comply with... doctrine... or... avoid conflict with strongly held religious convictions”.

That is a lot of hoops to jump through, but is probably wide enough.

My amendment 58 deals with a further restriction that paragraph 2 of schedule 23 imposes. Under sub-paragraph (2), a religious organisation that passes all the other tests needs only to be deemed mainly “commercial” by a court to be deprived of all the other exemptions available within the confines of paragraph 2. The UK is home to many such organisations; for example, Christian books, music and DVDs supply a vigorous market, and Christian bookshops, publishers, holiday  camps and conference centres have been around for decades and fulfil a religious mission, but at the same time could be considered to be commercial to a greater or lesser extent.

Amendment 59 deals with a similar restriction, deleting sub-paragraph (3), which allows a religious organisation that provides services on behalf of a public authority to be sued for sexual orientation discrimination. Just as many religious bodies engage in commerce, many faith bodies provide public services. Often they supply buildings, staff or volunteers at no expense whatever to the public purse, although the services may be publicly funded. They find themselves in the odd situation that they can continue to make decisions about service provision based on religion—sub-paragraph (3) does not affect that—but if they take account of sexual orientation they can be sued. I find it hard to see why sexual orientation is singled out in that way. That reaches further into the internal affairs of religious organisations than religious discrimination law. I see that amendment 251 seeks to resolve that inconsistency in a way that is even more detrimental to religious organisations, depriving them of the ability to discriminate on either ground.

For most people, the existence of the religious exemptions is not controversial. Beyond those two areas, the Government accept that to apply discrimination law as an unqualified absolute would lead to injustice for religion or belief organisations, because such organisations operate according to a particular set of beliefs that constitutes their whole reason for existing. However, I would be the first to accept that exemptions can also be too wide, and society needs to draw a line somewhere, within which all religions are allowed to operate.

The whole point of the paragraph 2 exemptions is to grant religious organisations freedom to operate according to a particular ethos by limiting the membership, the use of their buildings or the terms of their service provision. If any organisation has funded its building largely itself, it should have control over it and not be expected to hire it out to another organisation opposing its belief. Obviously, if public money has been taken to fund the building, strings would clearly be attached.

My contention is that existing exemptions for religious organisations are inadequate in the two areas of commerce and public service, because sub-paragraphs (2) and (10) completely deprive certain religious organisations of such protection against being forced to compromise the very beliefs that constitute their reason for being. Yet that requirement for protection of an ethos is particularly engaged in those fields of service provision. The principle of a commercial organisation or publicly funded service provider having freedom to resist endorsing views that conflict with its own ethos seems perfectly reasonable.

Ironically, the law has little issue with strongly held points of view that do not happen to fall within a protected characteristic. For example, an eco-friendly printer, run on green principles, is quite at liberty to reject a request to print a prospectus for a multinational oil company. Similarly, the management of a community centre not wishing its facilities to provide a platform for the British National party can refuse a BNP booking, because political belief is not a protected ground. The same principle underlies the exemptions in paragraph 2.  To require a religious organisation by law to provide a platform for views fundamentally opposed to its own seems very strange.

Obviously some commercial or publicly funded activities of religious organisations would not by their nature involve any danger of contravening their religious beliefs. For example, I am sure that a Muslim restaurant that adhered to halal principles would gladly serve any customer and that a church that receives public funding to run soup kitchens would distribute the soup to absolutely anyone. In such cases, the client’s religion or sexual orientation will be of no consequence.

Photo of Evan Harris Evan Harris Shadow Science Minister 1:30 pm, 2nd July 2009

Does the hon. Gentleman accept that, if a religious organisation chose to create a soup kitchen specifically for followers of its religion, it would be permitted to do so under the current exemption even though it is a public service or funded by a public authority? I accept that many would not want to do so, but would not many organisations have that option as the schedule now stands?

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

I am not a lawyer and nor am I am expert on everything that is permitted or not permitted, but I come back to the point of reality against academic theory that was touched on this morning. The religious organisations that I know that run soup kitchens, including Christian ones, do so for the good of people who are suffering and struggling. They just want to help everyone. I cannot imagine an organisation—religious or otherwise—handing out soup in George square or wherever and being selective about it.

Photo of Evan Harris Evan Harris Shadow Science Minister

Using the same language, what about if the organisation was running a school?

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

A school is a somewhat separate area. We have probably covered that ground, but all pupils are welcome to attend the schools in Glasgow with which I am familiar. The schools are both non-denominational and denominational and are, in effect, Catholic and secular. The school is the choice of the parents combined with that of the children. They always have the choice of two schools to which they are entitled to attend.

The position becomes more complex when the service provision implies endorsement. For example, in printing, an Orthodox Jewish publishing house with no religious exemption because its main activity is commercial has no right to refuse tracts denouncing Judaism. What about a Muslim printer asked to print material critical of the Prophet? Reference has already been made to Roman Catholic adoption agencies. They receive public funding but, in the light of Catholic moral teaching, wish to place children only with married heterosexual couples. Under paragraph 2(10), they will have no right to do so.

In effect, those organisations are being forced by law to comply with a different set of moral values or pull out of providing services completely. When the law forces religious organisations into that sort of dilemma, it is hardly promoting diversity. It excludes people of faith and their faith distinctions from service provision.

Photo of David Drew David Drew Labour, Stroud

Does the hon. Gentleman accept that, since the issue arose of the Catholic adoption agencies, many of them have either closed or have had to change the basis on which they operate? As he rightly said, there has been a collapse in diversity rather than an expansion.

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

The hon. Gentleman makes an excellent point. The danger is that we end up with a reduction in the total number of services available for children. We need to balance having the widest possible opportunity for a child to be adopted, which many children long for, with the equality that society is seeking.

Real diversity in the delivery of services to the public surely means that faith-based organisations can offer their services according to the values of the religious belief that defines them. After all, that belief often inspired the civic spirit of such organisations in the first place. Likewise, members of the public should be able to access services provided by organisations that share their faith convictions. Other protected discrimination grounds enjoy the benefit of diversity of delivery—a phrase to which reference has already been made. There are numerous examples of organisations that receive public funding, but which address their services to specific constituencies such as ethnic minorities, the elderly and people with disabilities.

Most of us would agree that the selective provision of services carried out on behalf of a public authority is acceptable, and intrinsic to the nature of the organisation’s work and ethos. Compare that with a situation faced by equivalent religious organisations. Lacking exemptions, they can no longer provide religious service instinctively. Either they comply with the law and operate according to values that contradict their own religious convictions, and basically become non-religious—the point has already been made—or they refuse to compromise and close down altogether. Either way, their clients are deprived of a service they wish to receive precisely because of its religious nature. Again, the Catholic adoption agencies provide a case in point. The issue was foreseen, but the agencies’ fears were ignored, and sexual orientation regulations were passed in the form that schedule 23 replicates. I understand that just two weeks ago, the Catholic Children’s Society here in Westminster announced it was closing down because, as its spokesperson said,

“it would be totally unacceptable for our Catholic agency to act in a way that is at odds with the teaching of the Church.”

Before the current law, we had genuine diversity of delivery in UK adoption services. Those who shared Catholic religious convictions about families could access adoption services that specifically endorsed such beliefs and tailored their services accordingly. Those who disagreed with that conviction could access adoption services provided by non-religious agencies. That diversity seems to be being reduced. My point is that the existing lack of exemptions on the ground of sexual orientation for commercial or publicly funded religious organisations creates problems, for both the organisations and the clients their services are intended to benefit.

There has been a fair bit of debate in this Committee as to where religion fits within discrimination law. I hope that as a result, it is obvious that certain features of the current law relating to religion are felt in some quarters to be unsatisfactory. Rather than replicating those elements in the Bill, amendments 58 and 59 would ensure a much fairer and more flexible legal framework  that could accommodate the convictions of religious people involved in service provision, while ensuring that exemptions remain open only to those organisations that need them and whose clients stand to benefit from them.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

I have to declare that I am a genuine sceptic regarding what we should do about the matter. I speak as someone who shares the Christian faith with the hon. Gentleman, and I have great respect for his argument. I have not decided, and I would like to listen carefully to what the Minister says on the merits of the amendments. As the hon. Gentleman said himself—this is a substantive issue, but not the one on which I will spend the most time—there is a balance to be found. Neither he nor I wish to reinsert or smuggle in some kind of discriminatory practice that would rightly distress people, and which might be felt, not just by secular people, to be unacceptable. On the other hand, we want to enable those who are acting within the tenets of their religion—we need to respect their good faith in doing so—to have as much flexibility as they can. I would probably strike the balance in a slightly different place from the hon. Gentleman on the issue of adoption agencies, but I do not want to dwell on that. I think we all hope to listen to the Minister carefully on the way in which she defines the grounds.

I rose because I wanted the hon. Gentleman to tell me about amendment 58 in relation to organisations. I think there is an implicit ambiguity in the schedule that may give rise to difficulty, and which is, at least on its own merits, worth exploring, although it is the less obviously politically or religiously sane of the two issues. The question is: what is an organisation? The hon. Gentleman mentioned, for example, a Catholic book shop that clearly is trading commercially or is required to do that. It could trade on one of two potential business models: it could either be “seeking to make a profit”, which would then be ploughed back into faith practice or into extending its activities in terms of the shop itself; or it could provide a service, possibly at a discount, to disseminate its faith without making a profit. Whether those are different in conception, I am not sure. Whether that would differentiate those two models—this would be a matter of religious test—in terms of whether the sole or main purpose is commercial, I am not sure either.

There is also the question of control, which we have touched on in relation to going beyond merely being a priest, officiant or representative, into other activities conducted in the name of religion. Is that particular activity under the control of the Church or religious body—is it, as company lawyers would say, a subsidiary?—or is it a free-standing body that happens to have a faith tag and is largely populated, led by or brought into existence by people of faith?

I would not be at all surprised if the Minister said, “Well, that will be a matter for determination in each particular case.” The difficulty with that, of course, is that if we do not have some handle on this issue—if it is not covered under Pepper v. Hart, for example—we do not really know how we are approaching it. I have not tabled an amendment to this schedule, but I wonder whether we should be probing a little further into whether the term “an organisation” should be extended to bodies for which it is primarily responsible, or for whose direction it is answerable.

I do not have the right words but I think it right to expose the issue, which might be overlooked, because it is apparently less important than the more politically salient issue of whether we should have religious adoption agencies where that is felt to be outwith the tenets of the faith. Both issues are important, and on this occasion—perhaps not for the first time—I shall hang on the Minister’s words.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am pleased to be able to catch your eye, Mr. Benton, as I have four amendments in this group. The hon. Member for Glasgow, East raised an important issue. Although a rerun of the sexual orientation regulations debate is not appropriate here, two things need to be said with regard to Catholic adoption agencies.

First, the Government were absolutely right to do what they did, and the consequences have not been bad, in the sense that the sky has not fallen in. The vast majority of organisations have been able to make arrangements to ensure that they do not discriminate on the ground of sexual orientation against the people with whom they place children. I think that everyone would recognise that those organisations do a good job and that their main aim is to look after the welfare of children. The case was made and voted for in this House—many Conservative Members voted for it—that gay parents are decent parents and can be good parents, and there is no basis for discrimination against them by people placing children, which is a public function.

Photo of Emily Thornberry Emily Thornberry Labour, Islington South and Finsbury

As we are making that point, the largest group of MPs who voted for that consisted of Labour MPs.

Photo of Evan Harris Evan Harris Shadow Science Minister

Yes. I think there were rebels in all parties, but there was cross-party consensus. My point is that there was a big majority in the end. I suspect that the hon. Member for Daventry voted along those lines, as well, as his record is good and on such issues, he was always associated with the views of the hon. Member who is now the Speaker.

Catholic adoption agencies have not turned out to be a problem. The problem is that if one says that organisations should be allowed to discriminate on the ground of sexual orientation because of their doctrine, one gets into difficult territory. Gay people might feel that they should not be discriminated against simply on the basis of doctrine, because historically, some Churches—fortunately none of them exist in this country—have had doctrines against mixed marriages, for instance; the Dutch Reformed Church of South Africa is a good example. That is just as offensive to people on the receiving end as discrimination in the public sphere or the commercial world, and they should be protected against it.

However, having said that, I have some sympathy with the problem that the hon. Member for Glasgow, East identified—he might want to listen carefully to this—of printers seeming to endorse something that they do not. That issue was not raised specifically during the passage of the sexual orientation regulations and the Equality Bill in 2006, but en passant; however, it was not dealt with in these terms. The hon. Gentleman makes an important point. I have much more sympathy for commercial organisations having the right to  discriminate—such as Muslim organisations that do not want to print something hostile to the Prophet; or, indeed, Christian organisations that find that because they are commercial, they must print something satanic—than I do for organisations delivering a public service having such a right. If the Government were in the mood to negotiate—I suspect they are not—perhaps a quid pro quo could be arranged to provide more scope for commercial organisations, particularly in the field of printing, not having to seem to endorse something, and to provide some scope on public functions. I shall reflect on what the hon. Gentleman said about that example.

Photo of David Drew David Drew Labour, Stroud 1:45 pm, 2nd July 2009

One problem is that some of us believe there should be a distinction between public and private bodies, but in these days of outsourcing and externalisation of contracts, where does one draw the line? It is impossible to know.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman makes a good point, but it is possible to draw a line, and the Bill does so in other areas. I drew attention to the positive duty in clause 143, and the Government rightly drew the line at a public authority or someone under contract to a public authority or otherwise performing a public function. I hope he will consider further that there may be scope for recognising that when an organisation is delivering a public function, it often does so to a vulnerable and captive group of people who should not be discriminated against. Many religious organisations do not discriminate. I accept 100 per cent. that many do not, but some do and we believe that a line should be drawn around delivery of public functions, even when that is outsourced. I have made the point before, so I will not make it again.

Amendment 295 explores commercial activity. It raises a genuine issue that arose in our evidence sessions. Paragraph 2(2) states that

“an organisation whose sole or main purpose is commercial” cannot make use of the exemptions. That is fairly wide, because it covers Christian and Muslim printers. Unfortunately, it does not cover public functions that are not solely or mainly commercial. The purpose of the amendment is to probe the Government on whether an organisation that is just bidding or tendering to carry out public functions on behalf of a public authority is in the commercial world. Adoptions R Us Ltd might have a religious basis, but it would be solely or mainly commercial. If the Solicitor-General agrees, perhaps there is less of an area that is not appropriately covered.

The other way of looking at the matter is to consider the activity, which is what amendment 296 explores. It would add to sub-paragraph (7)(c): where this

“is not a commercial activity.”

It is not duplication because sub-paragraph (2) refers to an organisation that is commercial. The church hall example is a good one. There was a clear disagreement in the oral submissions that we heard from Stonewall, which had a clear view on the Government’s example in their explanatory notes—I hope that they will put their opinion on the record, which the Solicitor-General attempted to do in the oral evidence part of our proceedings—

“A church refuses to let out its hall for a Gay Pride celebration as it considers that it would conflict with the strongly held  religious convictions of a significant number of its followers. This would not be unlawful sexual orientation discrimination.”

Is that an organisation that is solely or mainly commercial? If the letting out were done by a sub-organisation that existed to let out or manage the church hall, it would be solely and mainly commercial, but if the church let it out without the involvement of the sub-organisation, it could not be said that its sole or main purpose was commercial. Even before considering the role of mammon, that would not be its main operation. Is it right that it should be acceptable in one setting and not in another to discriminate against, for example, the lesbian and gay Christian movement solely on the basis of how the church letting operation is organised? That seems to create arbitrariness, rather than dealing consistently with a mischief, if there is a mischief.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

The hon. Gentleman makes some reasonable points, but does he not agree that there is danger in this regard? Although there may be good, sensible organisational reasons that reflect management theory, if one dares put it that way, for a separate organisation to be set up to focus on the specific subsidiary activity of letting the church hall, allowing the parish priests to get on with their pastoral duty, it would be bizarre if something that was sensible in administrative terms created a difficulty in terms of potential liability under the clause. My point possibly reinforces the one that the hon. Gentleman is making.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman’s point is the corollary to mine, which is that, if I am right, there would be a disincentive for the church to delegate the renting operation. We should come to first principles. Is it right that a hall can be let to all sorts of organisations, except gay organisations? That is wrong. Therefore this provision ought to be tightened up to make that clear, because we are considering the ends; it should not be about organisational matters.

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

Again, I wonder about the practical implications of what the hon. Gentleman suggests. If a church cannot control who it lets its hall to, I suspect that a lot of churches will not let them at all. People would suffer as a result of our becoming strict on this point, including the single mothers who are taught how to cook by a community group in my church’s hall.

Photo of Evan Harris Evan Harris Shadow Science Minister

The same argument was used in respect of gay adoption, when people said, “If we’re not allowed to discriminate, we won’t play and we’ll take our ball home.” Those terms were used in the debate about Catholic adoption—not by me, but by Labour and some Conservative hon. Members when describing that attitude. It is blackmail, essentially—I do not mean that in a particularly nasty way. Essentially, people are proposing to withdraw their service if they are not allowed to discriminate. Of course, they will lose money as well, so it is their decision to make.

I am asking the Government what they think the situation is with regard to a church in the two positions that I have mentioned.

My final question on the amendment is as follows. If someone wanted to rent a church premises to put on a lawful play—perhaps “Jerry Springer: The Opera”—that some people do not like, and if those premises were not used for religion any more but were owned by an  organisation that existed to look after and rent out those premises, would it be okay for such a commercial organisation to say, “Because this is sacred ground, we’re not going to allow you, as an organisation, because your activity is non-theistic or atheist, to rent our hall”? It would be interesting to know whether that would be religious discrimination or whether it would just be picking and choosing what activities are allowed in a church hall.

I have already dealt with my proposed amendment to sub-paragraph (10), in the sense that amendment 251, which would insert the words, “or religion”, asks the Government to say that those organisations delivering a public service should not be allowed to discriminate on the basis of religion. I have explained previously, so I will not do so again, that without the amendment, when combined with the public sector duty to promote equality of opportunity, the current provision may lead to other religions seeking their own specific service as soon as public services are delivered to one religion only. I do not think we want to go down that path.

Amendment 305 was tabled so that I can ask why the restriction that currently only relates to sexual orientation, but which we believe should apply to religion as well, only relates to section 27, which deals with services, and not to other parts of the Bill dealing with premises and associations, for example, which, by analogy, might be regarded as being related. I may not have understood the architecture of the Bill.

This has been a good debate that was appropriately short, given that we have debated these things before.

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

The Government sought to obtain a difficult balance as long ago as the passage of the Equality Act 2006, and reasserted that balance in the Equality Act (Sexual Orientation) Regulations 2007, so there is nothing new under the sun, and not terribly much in this debate, I am afraid, compared with previous ones. We think that we have found the right balance, and the amendments would change it in one way or the other.

Amendment 58, for instance, would extend the exemption for religious and belief organisations to cover even primary commercial organisations, so an entirely commercial enterprise such as a Catholic bookshop could presumably refuse to serve someone because they were Jewish.

Amendments 295 and 296 were tabled, I think, to enable the Committee to consider where the line should be drawn. Much would depend on the specific details of any case about what is or is not a separate organisation.

The hon. Member for Daventry raised the question of when something would have a solely or mainly commercial purpose, and when it would not. He predicted the only answer that I can give, which is that we put the best definition we could come up with into the clause. It will be a matter not of mathematical percentages but of a court, if it comes to that, making an assessment on the basis of the facts in each case.

Certainly, if a church kept a commercial activity to itself it would have more scope for discriminating than it would if it subcontracted to a separate company, even though the activity would take place under its auspices; the subcontractor would be likely to be a different organisation from the church or other organisation. So  although I can see that, at the edges, the provision might look faintly odd, it is none the less as good a way as can be thought of to set out what is intended.

Photo of Evan Harris Evan Harris Shadow Science Minister

Has the Minister considered referring to an activity that is commercial? That would give much more certainty, given the problem, which she quite fairly recognises, about when an organisation is a religious organisation, and the degree to which the management is contracted out. Thinking about it as an activity would clearly take away any of the liturgical stuff, and the stuff that the church does as its main activity, and would just leave the commercial activity that a church might be involved with free from discrimination.

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

The definition is posited on what I think is the sensible thing: the purpose of the activity, rather than the activity itself. The question is whether it is solely or mainly commercial. That must be the right approach.

Amendment 295 could potentially mean that any organisation that could not be considered solely commercial could take advantage of the exemption, even if it was predominantly commercial. The effect of amendment 296 would be that if a particular service provided by a religious or belief organisation was commercial, it would fall outside the exemption, where the issue was sexual orientation discrimination, but not where it was religion or belief.

The church hall example stands. Under the amendment, if there were, for instance, a nominal fee for use of a church hall, to contribute towards its maintenance costs, it would be possible to refuse to let the hall to people whose religious beliefs were offensive to the followers; but that would not apply in the case of a gay or lesbian group, even if letting to that group would—and it is hard to understand why it would—outrage some particular members of particular religious communities. The question is really one of trying to achieve balance and proportion. The test seems to us to be the right one.

Amendment 305 would operate in different ways, specifically with respect to the performance of functions by a religious or belief organisation, if it was under contract to a public authority. Paragraph 2 of schedule 23 does not allow discrimination on grounds of sexual orientation in the provision of publicly contracted services. However, it does in theory allow such discrimination in relation to disposal of premises, and management of premises in which the organisation retains an interest, if the other requirements in the paragraph are met. It is hard to see how a contract with a local authority would affect that. I cannot see the point of the amendment, but the hon. Member for Oxford, West and Abingdon makes it clear that his amendments are probing anyway.

A small group of people from the local Anglican church getting together and organising Christmas lunch for the needy in their religious community is one thing, but the Church House bookshop is quite another. Bookshops, hostels and the like could have a religious or other ethos, but they are essentially commercial. The Government’s position in that regard is clear: commercial organisations should provide goods, facilities and services without prejudice. However, not-for-profit organisations, which may engage in some level of commercial activity  to support their wider activities, should not automatically be excluded from the benefit of the exemption in paragraph 2.

Amendment 59 also covers familiar ground. The amendment would allow a religious or belief organisation to discriminate on grounds of sexual orientation, even when acting on behalf of a public authority. That brings us back to the much-discussed issue of Catholic adoption agencies. The Government made it clear when the regulations were introduced that there would be no specific exemption for faith-based agencies offering publicly funded services, and that remains our position. However, we did not, as the hon. Member for Glasgow, East asserted, disregard the concerns of faith bodies at all. Significant funding was made available to help all of them to understand the regulations, which they said was extremely helpful—£500,000 was given to voluntary adoption agencies to help them to understand and tailor their services so that the regulations were complied with. Most agencies have moved to an open policy: assessing same-sex couples as prospective adopters too. There has not been any impact on services. I am in the rare but happy position of agreeing totally with the hon. Member for Oxford, West and Abingdon that the change has done no harm and was right.

To clarify, a Catholic or other religious adoption agency that did not accept public funding would be able to benefit from the exemption in paragraph 2, because it would only be prevented from discriminating on the ground of sexual orientation if it was acting on behalf of a public authority. I hope that clarifies the matter for the hon. Member for Glasgow, East.

Amendments 59 and 251 address the same topic from opposite directions. The difference in approach between religion and belief and sexual orientation is justified. There could be a legitimate reason why a local authority chooses to contract a number of organisations to provide a particular service, including a religious organisation that only provides that service to those of a particular religion. The provisions are not new. It is entirely legitimate for a council to contract a Jewish organisation to provide kosher meals on wheels, but we cannot envisage any circumstances in which a religious organisation providing a public service should legitimately be allowed to provide it only to those of a particular sexual orientation.

There must be a balance. The issue has been debated many times—not least in the Committee—and whether the balance is right is a thorny question. However, there were debates before the Equality Act in 2006 and the regulations in 2007, all of which have informed where the line is drawn, and we think that we have the balance right. The fact that two completely conflicting amendments have been tabled also cheers me into thinking that we have the right balance.

Photo of Evan Harris Evan Harris Shadow Science Minister 2:00 pm, 2nd July 2009

I want to respond on two points. First, there is nothing wrong with asking a Jewish organisation to deliver kosher meals—we cannot prevent such an organisation being a provider when a secular one is allowed. However, is it necessary to restrict the delivery of kosher meals to Jewish people and prevent delivery to Muslims, if they are happy to take the food? Even if the function is a public one, funded by public money, that is unnecessary.

Secondly, will the Minister consider further the interesting example that she gave? In her response she recognised the point—perhaps I recognised her point—that if a  Christian bookshop is a commercial bookshop, it cannot refuse to serve Jewish customers. In the analogy with the church hall, however, if the church runs the bookshop, the organisation is not mainly or solely commercial. Therefore, if that bookshop is not, in fact, delegated to an organisation whose purpose is solely or mainly commercial, we could have a situation where a bookshop of one religion would be able to discriminate. I do not mean to use the example of Christians discriminating against Jews as I do not believe that would ever happen, but there might be examples in other cases. Therefore, there is a problem,

Interestingly, in her response the Minister talked about the activity being commercial.

Photo of Evan Harris Evan Harris Shadow Science Minister

The Minister is right, and I am glad that she has corrected me. She said that the purpose needs to be commercial, but that means the purpose of the organisation. My case is that it might more satisfactorily meet the problem of a bookshop that is not delegated, if the language referred to “The activity, the purpose of which was solely or mainly commercial”. I think that covers all bases, and I hope that, even if she does not rise to respond again, the Minister will consider that. That might solve the problem of the fact that churches and religious organisations can now see how to get round the solely or mainly commercial aspect, by not having a subordinate organisation running that activity.

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

We think that the way we have done it now is better. It is up to organisations to manage themselves as they see fit. I am prompted to say that a bookshop is not likely to meet the other criteria anyway, so how it is organised probably would not make all that much difference in the example given by the hon. Gentleman. That is where we are; we think that we have the balance right, and I invite the hon. Member for Glasgow, East to withdraw his amendment.

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

I have listened to what is being said. I am encouraged by the Solicitor-General when she uses words such as “difficult balance” and “proportionate”, which to be fair she has done throughout the sittings of the Committee. That is what we are all looking for.

I am a little disappointed by some of the other comments. I wonder whether the evidence supports the idea that there has been no problem or loss of service, when adoption agencies are closing down. The examples of a bookshop or publisher not serving somebody were definitely not what I was aiming at. I have no problem with legislation saying that a bookshop or a printer must serve anybody who comes in. The problem is about the material. Is the bookshop being forced to sell or publish material that it is not happy with? Is the printer or the website designer being forced to produce material that they are extremely uncomfortable with? That would require some negotiation, as was suggested by the hon. Member for Oxford, West and Abingdon, and I agree with him about that. Perhaps somebody could look at that point later.

The issue of religious organisations being provided with funds to understand and tailor their practices is, I think, a draconian method whatever it applies to. It  implies, “We will not discuss it, we will just give you money to understand us.” On the basis that all those matters have been discussed, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 306, in schedule 23, page 237, line 8, at end insert—

‘(4) Sub-paragraph (1), insofar as it relates to gender reassignment discrimination, does not apply in the case of a person who holds a gender recognition certificate’.

This is to prevent gender reassignment discrimination against a person with a gender recognition certificate.

I will make a brief point that we have touched on before. I was prompted to table the amendment to probe the Solicitor-General a little further on her understanding. Perhaps she will remember that elsewhere in the Bill, there was a question about discrimination—presumably in employment—on the basis of gender reassignment. I asked what would happen regarding someone who has a gender recognition certificate because they had changed gender.

The Solicitor-General, quite fairly, made the point that that would be gender discrimination—I believe that it was during a flowing debate, so it might not have been something she had prepared, but I was persuaded at the time and certainly went on to reflect on it. If the relevant provision did not allow gender discrimination, then discrimination on the grounds of gender reassignment against someone who had a gender recognition certificate would not be permitted—if it was otherwise permitted. I went away to reflect. When I asked a couple of people, they were not certain that that was the case.

Will the Solicitor-General confirm that as soon as someone has a gender recognition certificate they cannot be acted against on the basis of gender reassignment? They have to be acted against—if indeed there is a case for them to be acted against—on the basis of their actual gender. Let us take someone who was born a man but has transitioned to a woman and has a gender recognition certificate, which, therefore, recognises that she is a woman with the full rights of a woman.

Photo of Tim Boswell Tim Boswell Conservative, Daventry

This may further complicate the matter, but there are two types of gender recognition certificates—an interim certificate and a definitive one. The Minister will need to respond to that point, because the situation will depend on whether someone has entered the final stage.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Gentleman is correct. I am happy for the Solicitor-General to consider both cases. Like me, he is a veteran—a very young one of course—of the Gender Recognition Bill, which was enacted in 2004, and we remember debating such issues in detail then.

A man has transitioned to a woman and, for the sake of my example, has a final gender recognition certificate. The question is, if an organisation does not permit that woman to access services that are for women on the basis that they used to be a man, is it discrimination on the basis of gender reassignment? Given that everyone else who is using those services is a woman, how could that person argue that they were being discriminated against as a woman in not being allowed to access those  services? Will the Solicitor-General educate me as to how that could be seen as gender discrimination? I am getting out of my comfort zone here. To say, “Yes, women can come, but you can’t come even though you are a woman” would be gender discrimination. It is intended as gender reassignment discrimination, it is received as that, but the question is whether it is covered in law.

My fear is that without something like the amendment, which is probing in this part, that doubt—or even legal loophole—remains on behalf of the provider and the recipient, and it perhaps applies in the other place where we came across this.

I should like to make a stand part point, because we do not have the opportunity to have a stand part debate. The Government have been right to recognise that the schedule does not permit, for example, Catholic adoption agencies to discriminate against people on the basis of sexual orientation. The Bill, quite rightly, closes down the loophole whereby charities might try to change their instrument. The proportionate and legitimate test, which is welcome, will stop charities from wasting their time trying to get around the provisions of schedule 23 by approaching the Charity Commission.

I rest my case and just say that we would like clarification on the point that I have made.

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

The amendment would reduce the scope of the exemption that applies in the provision of communal accommodation, so that a provider could not justify discriminating against a transsexual person with a gender recognition certificate. The Gender Recognition Act 2004 is intended to provide transsexual people with legal recognition of their acquired gender. That is what it is for. It is not something that people will carry about as a sort of identity card. It has its own purpose. The hon. Gentleman’s amendments may suggest that gender reassignment might be obvious or that it might be that that is how someone deals with a certificate, which we do not think is awfully likely. In limited circumstances, it might be reasonable to permit different treatment of someone with a gender recognition certificate in the provision of communal accommodation, for practical reasons of privacy. That is the point of the availability of the provision.

The example would be a female-to-male transsexual, who may not have had any surgery but remains physically female and may not want to be accommodated in all-male accommodation. We do not want to discriminate against transsexual people, especially those who have gone through the rigours of getting a gender recognition certificate. We want to allow for the provision of sensitivity in that narrow area. The clause is carried over from the sex discrimination legislation, and in 15 months of operation we have not been aware of any incidents of discrimination arising from it. It is there for purposes of availing parties of sensitivity if necessary; we do not expect it to be used much.

Photo of Evan Harris Evan Harris Shadow Science Minister 2:15 pm, 2nd July 2009

I shall reflect on what the Minister has said. I thought that the example that she was going to use was that of a provider of communal accommodation not wanting to allow someone who retained the physical characteristics, or some of them, of their original or  birth gender into accommodation; therefore, whether or not they had a certificate, they would be entitled to do that. Her example was framed in the way of protecting the individual at the request of the individual, which I need to get my head around. I assume that both could apply. I accept that that gives us an example to work with and to go away and think about.

If there are people who have a certificate who have not had surgery, it might be a problem for other users of facilities—for example, changing rooms—if there was someone there who looked remarkably like someone of the other gender, even though they had a certificate. I accept the Minister’s point, therefore, and I shall need to take it back to organisations that represent the transgender community. It may well be that there is a stronger argument to provide that here than there is for the exemption to be allowed for employment. I invite her at least to consider whether we can legitimately transfer the Sex Discrimination Act 1975 provisions, post-Gender Recognition Act 2004, in the case of employment, as she makes the case for doing in the case of services. Given that she has provided me with an example to go away and think about, it is not my intention to seek to divide the Committee. If she has no intention of saying anything further, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 23 agreed to.