Government suffers Equality Bill defeat
By Anna Arco

29 January 2010

Government suffered a humiliating defeat in the Lords over the Equality Bill (PA)

The Government suffered a humiliating defeat over the Equality Bill in the Lords this week, after peers voted against measures which could have curtailed religious freedom.

On Monday the Lords backed an amendment proposing to drop a contentious clause in Harriet Harman's Bill, which would have changed existing exemptions for religious employment. The amendment was passed by five votes.

Peers also voted against a last-minute amendment to change the language of the clause tabled by the Government in the face of heavy criticism from the Catholic Church, the Church of England and other religious groups with a majority of 21 votes. The Lords also voted to exclude the word "proportionate" in two sections of the Bill, which they argued would add a new legal dimension.

Church leaders feared that the legislation introduced in the Equality Bill would force the Catholic Church to ordain women and make it almost impossible to discipline priests who contravened Church teaching without facing crippling lawsuits. Although the Government backed down two weeks ago and tabled its own amendment "clarifying" the language, the Church urged peers to vote for an earlier amendment tabled by Baroness O'Cathain, the Bishop of Winchester, the Rt Rev Michael Scott-Joynt, Baroness Butler-Sloss and Lord Anderson of Swansea.

The O'Cathain amendments, which were passed, leave the provisions for employment as they were defined in 2003, preserving the status quo. The 2003 Employment Regulations allow employers to discriminate on the basis of religion and sexual orientation with respect to employment for the purposes of organised religion.

A spokesman for the Catholic Church said: "While we're obviously pleased by the outcome of the debate, it was an ultimately unnecessary vote. We raised our concerns over the problems of the drafting as soon as the Bill was published. If they had given earlier attention to the text and to our concerns, then we could have engaged in dialogue and we could have agreed upon drafting that met all the needs."

The Bill enters its report stage in two weeks before returning to the Commons. At this stage it would be possible for the Government to reverse the Lords amendments but then the Bill would have to return to the Lords in a procedure known as "parliamentary ping-pong".

Parliament watchers think the Government is unlikely to do so given that there is intense pressure to push the Bill through before the General Election expected in May.

During the debate, Baroness O'Cathain said: "Organisations that are based on deeply held beliefs must be free to choose their staff on the basis of whether they share those beliefs. It would, for example, be appalling if the Labour Party could be sued for not selecting Conservative candidates and no one would want to see Greenpeace sued for refusing to appoint oil executives to its board of directors."

One point of contention during the debate was the suggestion that the Government had included the clause which narrowed the definition of employment for the purposes of organised religion in order to comply with an EU employment directive from 2000. A legal document from the European Commission to the Government, called "a reasoned opinion", was leaked. It implied that the Government had agreed to comply with EU regulations while telling peers that it wasn't changing the existing regulations through the wording of the Bill.

The High Court ruled that the religious liberty safeguard was legally valid in 2004.

Baroness Royall of Blaisdon, who tabled the Government amendment, denied that the Government was changing the wording in order to be in line with the EU. She said: "Issuing a reasoned opinion is one of the formal steps in infraction proceedings, which the Commission can bring where it considers that a member state has incorrectly transposed a directive.

"The generally agreed position is that reasoned opinions are confidential between the Commission and the relevant authorities in the member state concerned. If the Commission is not satisfied with the member state's response, the case could be referred to the European Court of Justice. That is why I cannot say any more about the reasoned opinion in question, to which we will be responding in due course."

The European Commission's reasoned opinion does not necessarily mean that Britain is currently acting against European law. Of the six reasoned opinions given to the British Government by the European Commission recently, the European Court of Justice ruled against the European Commission in four out of six cases.



The Anglican Archbishop of York, Dr John Sentamu, argued in favour of Baroness O'Cathain's amendments, saying that there were many jobs that could be done in the Church of England which could be done without being Anglican, "but for our clergy, and for some key lay roles, we impose certain requirements in relation to faith and conduct. The same is true of all other churches and religious organisations, although the nature of the requirements will vary in each case." He said that the requirements about marital status or personal conduct varied in different religious organisations, citing the Catholic Church's requirements for priests to be male and celibate, which were different to those of the Orthodox Church or the Church of England.

Dr Sentamu said: "These touch on matters - gender, marital status and sexual orientation -_that the law lays down that employers in general should not take into account. To use the language of the Bill, they represent 'protected characteristics' that can form the basis of discrimination claims."

By contrast, he said "churches and other religious organisations cannot draw the same clear-cut distinction between who we are and what we do, between what we believe and how we conduct ourselves, between work life and private life. Successive legislation over the past 35 years has always recognised the principle that religious organisations need the freedom to impose requirements in relation to belief and conduct that go beyond what a secular employer should be able to require. "



He said that the Lords might believe that "Roman Catholics should allow priests to be married; they may think that the Church of England should hurry up and allow women to become bishops; they may feel that many churches and other religious organisations are wrong on matters of sexual ethics".

But, he said, "if religious freedom means anything, it must mean that those are matters for the churches and other religious organisations to determine in accordance with their own convictions. They are not matters for the law to impose."

Baroness Sayeeda Warsi, Shadow Minister for Community Cohesion and Social Action, supported Baroness O'Cathain's amendment. Following the vote, she said: "Today's vote in the House of Lords is a victory for common sense.

"The Church of England, the Catholic Church and leaders of other faiths have all campaigned together in a true spirit of community cohesion to protect an important religious freedom."

A Government Equalities Office spokesman said: "We're disappointed by the outcome of tonight's vote in the Lords, and are considering next steps. It remains the case that people should not be discriminated against because of their sexual orientation, regardless of who they work for. There is, however, a narrow exception to this for organised religion when recruiting people to carry out specific religious duties, for example preaching."

He said it was too early to say whether the Government would consider reversing the will of the Lords when the Bill returned to the House of Commons.