Understanding Monday’s Amendments

The Bishops (below) have asked Peers to vote in favour of three amendments to the Equality Bill in place of the Government’s compromise amendment. Let me spell out what the different amendments (and the current text) mean.

The first amendment (98) reads as follows.

Page 165, line 5, leave out “application is a proportionate means of complying” and insert “requirement is applied so as to comply”

The amendment is to Schedule 9 which is the list of exemptions from the Bill, of which Part 2 covers religious requirements in relation to sex, marriage, sexual orientation and the like. This amendment would change Schedule 9, Part 2(5) of the Bill from as follows

The application of a requirement engages the compliance principle if the application is a proportionate means of complying with the doctrines of the religion.

to

The application of a requirement engages the compliance principle if the requirement is applied so as to comply with the doctrines of the religion.

The original wording would allow a court to decide what was and wasn’t a “proportionate means of complying” with a doctrinal requirement. The amendment simply requires a court to decide whether a refusal to hire someone for a job was in line with a religious organisation’s doctrinal stance. The difference is crucial, because as the law stands it isn’t good enough just to refer to a religious requirement, the restriction on employment also has to be “proportionate”, which is left for a court to decide.

Amendment 99 reads as follows

Page 165, line 8, leave out “application is a proportionate means of avoiding conflict” and insert “requirement is applied so as to avoid conflicting”

This would change Schedule 9:2(6) from

The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the application is a proportionate means of avoiding conflict with the strongly held religious convictions of a significant number of the religion’s followers.

to

The application of a requirement engages the non-conflict principle if, because of the nature or context of the employment, the requirement is applied so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers.

Once again, this amendment removes from the courts the ability to overturn a religious objection on the grounds of proportionality and returns any legal debate simply to the matter of whether a religious objection to hiring someone on the grounds of sex, marriage, sexual orientation etc was in conflict with the beliefs of the religion’s followers. Of course, it’s still down to a court to decide what a “significant number”of followers was.

Amendment 100 reads as follows

Page 165, line 13, leave out sub-paragraph (8)

This removes this entire section from Schedule 9:2(8)

Employment is for the purposes of an organised religion only if the employment wholly or mainly involves—

(a) leading or assisting in the observance 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 this section currently stands, only those employees of a church who were explicitly employed to teach doctrine could be exempted from the strictures of the Equality Bill. Positions like receptionists, detached youth workers, vergers etc wouldn’t be exempt from the strictures of the Bill, even though a Church would reasonably want to employ people in public facing representative roles whose manner of life complied with Scripture.

The proposed Government amendment tries to remedy this and reads as follows

Page 165, line 10, at end insert—

“( ) Employment is for the purposes of an organised religion only if—

(a) the employment is as a minister of religion, or
(b) the employment is in another post that exists (or, where the post has not previously been filled, that would exist) to promote or represent the religion or to explain the doctrines of the religion (whether to followers of the religion or to others).”

Obviously it’s clear that this amendment doesn’t provide the ability for churches to require employees in public facing roles to have a manner of life consistent with Scripture.

One final question for the lawyers out there. Would amendment 98 above, if passed, give the Church of England legal grounds to forbid its clergy to enter into Civil Partnerships?

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