The contentious issue here relates to the exemptions granted for reasons related to religion, which has been added in the revision. This is in Regulation 7.
The relevant draft now reads as follows (changes in bold)
| Regulation 7 October 2002 draft | Regulation 7 May 2003 draft |
Exception for genuine occupational requirement |
Exception for genuine occupational requirement etc
|
| (2) This paragraph applies where, having regard to the nature
of the employment or the context in which it is carried out— (a) being of a particular sexual orientation is a genuine and determining occupational requirement; and (b) it is proportionate to apply that requirement in the particular case. |
(2) This paragraph applies where, having regard to the nature of the
employment or the context in which it is carried out— (a) being of a particular sexual orientation is a genuine and determining occupational requirement; (b) it is proportionate to apply that requirement in the particular case; and (c) either— (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it, and this paragraph applies whether or not the employment is for purposes of an organised religion. |
| (3) This paragraph applies where— (a) the employment is for purposes of an organised religion; (b) the employer applies a requirement related to sexual orientation— (i) so as to comply with the doctrines of the religion, or (ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers; and (c) either— (i) the person to whom that requirement is applied does not meet it, or (ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it. |
What the EU Directive says that is specifically relevant is on this web page.
The Archbishops' Council raised a number of detailed issues in its submission which are more directly relevant to the Religion and Belief regulations and are listed under that heading here. However, one of these specifically requested the addition of dismissal to clause 7(1) above, which the government has done.
What the Archbishops' Council's submission said, in relation to sexual orientation in particular, begins here. Some key points are:
19. …In its doctrines and teachings the Church of England, along with other Churches and faith groups, draws a clear distinction between orientation and behaviour. We understand, however, that the Courts and tribunals are most unlikely to recognise any clear-cut distinction along these lines in considering discrimination cases brought under the new regulations…
21. … it is crucial that [the regulations] do not encroach on the freedom which all religious organisations must have to set and enforce their own conduct rules in relation to those who work for and represent them.
22. What those conduct rules should be is a matter of continuing debate… Churches and other faith-based organisations must not find themselves in a position where the law of the land is preventing them from conscientiously applying their own sincerely held doctrines and beliefs on moral issues.
The specific wording change requested was drawn from Section 19 of the Sex Discrimination Act(see here for context):
"Nothing in parts II to IV of these Regulations shall render unlawful anything done for the purposes or in connection with an organised religion so as to comply with the doctrines of the religion or avoid offending the religious susceptibilities of a significant number of its followers."
This wording has been adopted by the government save for the replacement of "religious susceptibilities" by "strongly held religious convictions".
So essentially the Archbishops' Council has obtained all that it asked for in respect of this particular regulation, and arguably is responsible for the changed wording that we now have.
The Lesbian and Gay Christian Movement has expressed strong objections to this wording. Their full comments on the regulations are here, but the three key points are as follows, with my comments added.
1. Article 4.2 limits the exception allowed to churches and faith-based organisations to differences in belief between the employer and the employee. Regulation 7(3) above sanctions discrimination on a quite separate ground, namely sexual orientation. It therefore is contrary to the Directive.
Comment: Regulation 7(3) certainly does do that. But Article 4.1 appears to allow this provided that it relates to a genuine and determining occupational requirement. It would be exceedingly difficult for the Church of England to make any such claim in relation to sexual orientation, given the distinction already made by it between orientation and behaviour.
2. It is not necessary to claim that this is being done "to comply with the doctrines of the religion"; it is only necessary to demonstrate that it is "to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers". A vocal minority of followers would suffice.
Comment: The Archbishops' Council needs to explain why the particular wording of clause 7(3)b (ii) is appropriate in the context of sexual orientation. It is not self-evident.
3. The provisions of 7(3) apply not only to churches, mosques, etc. but also to any employment connected with "purposes of organised religion", which would encompass a whole range of employers. Indeed, employers could evade the regulations by declaring their businesses to be "faith-based".
Comment: this seems to be the case, although LGCM refers here to the Explanatory Notes. These contain the following.