Amended Monday morning
The Government Equalities Office has published its response to the consultation held on this subject. The written ministerial statement is recorded here.
The document includes a copy of the draft regulations which will be laid before parliament shortly.
Download the full document via this link (PDF 776k)
Note The document published at the above link on 2 November was replaced by a revised version on 4 November. The GEO press office has confirmed that this was to correct a minor error.
From the Introduction:
1.1 Following a listening exercise held last year by Lynne Featherstone MP, Minister for Equalities, with a range of faith and lesbian, gay and bisexual (LGB) groups, the Government announced on 17 February 2011 its intention to remove the legal barrier to civil partnerships being registered on religious premises by implementing section 202 of the Equality Act 2010.
1.2 Making this change will allow those religious organisations that wish to do so to host civil partnership registrations on their religious premises. This voluntary provision is a positive step forward for both LGB rights and religious freedom.
1.3 The Government published a consultation document on 31 March 2011, seeking views on the practical arrangements necessary to implement this change. The consultation ran until June 23 2011. This document provides a summary of the responses received during the consultation.
1.4 1,617 responses to the consultation were received. Of these, 343 responses were on the official pro forma which addressed each question in turn and 1,274 were responses by email or letter. Of those submitting the official pro forma, 145 were from organisations and 198 from individuals.
1.5 All responses were gratefully received and individually considered by the Government Equalities Office.
1.6 A copy of the draft regulations to implement the proposals consulted on is included as part of this document and reflects the many useful and constructive responses received during the consultation period. These regulations will be laid before Parliament shortly so that they are able to come into force by the end of 2011, subject to the will of Parliament…
The official Church of England response to the consultation was reported previously, see Registration of Civil Partnerships in Religious Premises from June.
At that time, the official press release said:
“That means that there needs to be an ‘opting in’ mechanism of the kind that the Government has proposed. In the case of the Church of England that would mean that its churches would not be able to become approved premises for the registration of civil partnerships until and unless the General Synod had first decided as a matter of policy that that should be possible.”
Yesterday the following official Church of England response was issued:
We will study the draft regulations as a matter of urgency to check that they deliver the firm assurances that have been given to us and others that the new arrangements will operate by way of denominational opt-in. If Ministers have delivered what they said they would in terms of genuine religious freedom, we would have no reason to oppose the regulations. The House of Bishops’ statement of July 2005 made it clear that the Church of England should not provide services of blessing for those who register civil partnerships and that remains the position. The Church of England has no intention of allowing Civil Partnerships to be registered in its churches.
The Church of England website has this page: Civil Partnerships.
20 CommentsThe Primus of the Scottish Episcopal Church has now written on this subject.
See his article in the Scotsman The Most Rev David Chillingworth: A secular state should be prepared to defend religious freedom and his article on Thinking Aloud Church, state and the secular society.
…The suggestion has been made that the Scottish Government does not have a mandate to introduce legislation which is of such fundamental significance for our society. The implication is that these are “non-negotiable” areas. If the Scottish Government was proposing to legislate to enshrine in law discrimination on the grounds of gender, sexual orientation, colour or race, I would publicly oppose their moral right to do so. But that is not the nature of these consultation proposals.
So what does this say about the relationship of church and state in modern society? I have often said that I am a supporter of the secular state because it sustains a proper separation between legislature, judiciary and church.
In my Irish background, I have experienced both the confessional state which was the Irish Republic in my childhood and the Northern Irish mirror image – the sabbatarian “lock up the playgrounds on Sunday” society. Neither was healthy. A secular state should defend religious freedom – but it will not make any assumptions about religious faith nor defer to it.
If, following the consultation period, the Scottish Government and parliament feel that they should legislate in this way, I believe that it is their right to do so. It is clear that there would be an “opt-out” protection for those who cannot accept this. Churches and faith groups would have to decide whether they wished to use or to stand outside the provisions of such legislation…
This has been reported also in the news columns of the Scotsman as Gay marriages backed by Episcopal Church* which is a most perverse interpretation of what the Primus has said. Which was this:
IN THE Scottish Episcopal Church, we’re thinking about our response to the Scottish Government’s consultation on same-sex marriage and other related issues. The definition of marriage set out in our Canons is that, “marriage is a physical, spiritual and mystical union of one man and one woman”. That is the position of our church. It’s a difficult issue for us – as it is for all churches and faith groups. We have among our membership people who feel passionately that change is needed – and those who feel equally strongly that we should resist any attempt to broaden society’s understanding of marriage. The consultation period is very short. Among the things we shall say will be that if – and it’s a big “if” – we were to consider changing our canonical definition of marriage, that would require a two-year process in our General Synod, the outcome of which could not be predicted with any certainty.
We haven’t got involved in public debate about this. We’ve been asked for our view and we shall give it in a considered manner – believing that the time for public debate comes later…
* The Scotsman later changed its online headline to read Episcopal Church considers changing stance on gay marriages. Which is less of a stretch.
9 CommentsBoth the UK government and the devolved Scottish government are considering legislative changes to allow civil same-sex marriages.
This post by Adam Wagner at UK Human Rights Blog summarises the current legislative situation in both jurisdictions: Gay marriage on the way… but not quite yet.
…The Prime Minister said in his speech that “we’re consulting on legalising gay marriage.” In fact, to the annoyance of some campaigners, the consultation was announced by the Equalities Minister last month but will not begin until March of next year. According to gay news website Pink News, the Prime Minster personally intervened to ensure the law is changed “within the lifetime of this parliament“, but Liberal Conspiracy doubts whether this is now practically possible. By contrast, a Scottish consultation on gay marriage launched in September…
The Scottish Government’s consultation – which also covers the issue of civil partnership registrations taking place on religious premises in Scotland – is already in progress, see The Registration of Civil Partnerships Same Sex Marriage – A Consultation.
This consultation paper seeks views on the possibility of allowing religious ceremonies for civil partnerships and the possible introduction of same sex marriage…
…The Scottish Government is choosing to make its initial views clear at the outset of this consultation. We tend towards the view that religious ceremonies for civil partnerships should no longer be prohibited and that same sex marriage should be introduced so that same sex couples have the option of getting married if that is how they wish to demonstrate their commitment to each other. We also believe that no religious body or its celebrants should be required to carry out same sex marriages or civil partnership ceremonies…
Objections to this proposal have been voiced strongly. In particular:
Archbishop Mario Conti issues Statement on marriage
Bishop Philip Tartaglia; “same sex ‘marriage’ is neither warranted nor needed”
And most recently, Former SNP leader calls for gay marriage referendum.
There have been objections to the objections too. Most notably from the Provost of St Mary’s Cathedral, Glasgow, who preached this sermon last Sunday.
…It vexes me greatly to say so in public, but at such a time as this, there seems no alternative but to speak up. The behaviour of our brothers, the Roman Catholic Bishops in recent days, has been so unpleasant and so ill judged that it risks harming the good influence of the whole Christian community.
To behave as though bishops carry some kind of block vote to Holyrood, to threaten politicians and to decry those who want access to the dignity of marriage as unnatural…. to say these things seems to me to go too far.
Such comments from the leaders of the Roman Catholic church have left me feeling embarrassed as a Christian. There is a risk that all of the churches will appear to be out of touch, arrogant, conceited and rude. We don’t all have to agree but we are all called to behave charitably and there has been an absence of love in this relentlessly bitter campaign and it diminishes us all…
This led to news coverage in several places, including The Times (not available online without subscription) which ran a story with extensive quotes from the sermon under the headline Catholic views on gay marriage ‘unpleasant’.
And Channel 4 News hosted a discussion on the general topic (not specifically related to Scotland) which you can see here: Is Britain divided over the issue of gay marriage?
12 CommentsThis morning’s papers are reporting that the UK government will begin a formal consultation on equal civil marriage for same-sex couples with a view to making the necessary legislative changes before the next general election.
Alan Travis in The Guardian Gay and lesbian marriage to be considered in spring legal review
“Consultation will only cover civil marriage for same-sex couples, not religious weddings – nor heterosexual civil partnerships.”
Christopher Hope in The Telegraph Gays to be given right to marry
“Plans to give same-sex couples the right to marry will be published next year, ministers have announced.”
Jonathan Brown in The Independent Hope for new law to allow gay marriage
Daniel Martin and Tim Shipman in the Mail Online Gay marriage ‘to be made legal in Britain by 2015’
Gavin Cordon in The Scotsman Same-sex marriage may be on statute book soon
12 CommentsThird Sector reports: Charity Commission publishes further guidance on the Equality Act.
Equality Law has Charity Commission issues new Equality Act guidance.
New guidance has been issued by the Charity Commission which sets out its views on the application of the new charities exception in the Equality Act and the circumstances in which a charity may restrict its benefits to a group defined by reference to a protected characteristic.
The Charity Commission advice is here: Equality Act guidance for charities: Restricting who can benefit from charities .
This may be of interest to those who have been following the case of Catholic Care.
3 CommentsThe Church Times has a report by Pat Ashworth Nurses win abortion battle.
The first part of this deals with the case reported here: Equality Act applied in abortion case.
The second part deals with the EHRC intervention: Equality Commission reveals its views on 4 cases at the European Court. This finishes with a quote from me, which unfortunately got shortened in the editing process. The full quote reads as follows:
5 CommentsMany observers will welcome the EHRC’s suggestion that the rights of Eweida and Chaplin, under Article 9(2) of the European Convention on Human Rights to manifest their Christian beliefs, were not adequately considered. It is unclear why claims such as theirs ever came before the courts at all.
However, the EHRC’s view that the domestic courts came to the correct conclusions in the cases of Ladele and McFarlane will be very unwelcome to those who have campaigned so vigorously and so long on their behalf. Most employment lawyers though will breathe a sigh of relief that common sense has again prevailed.
Back in June, we noted that a Church Times leader had said this about that Legal Opinion, which was first reported much earlier in May.
In May, our view was a negative one, since the document listed several reasons why the appointment of a gay bishop could be blocked. This week’s positive spin has not changed our opinion. As the leaders of the “gay-led” Metropolitan Community Church in Manchester wrote to Dr Williams this week, “We note that [unlike a gay candidate] heterosexual candidates for bishoprics are not asked to repent of any sexual activity with which the Crown Appointments Commission may be uncomfortable.” More than one serving bishop has said that he would have considered it an impertinence had he been asked about his sexual history.
The legal advice has no more weight now than before it was circulated to Synod members. It was not approved by the Bishops when they discussed it in May, not least because, to many, the brief was not how to remove discrimination within the Church, but how to continue it untroubled by the law.
The full text of the letter to Rowan Williams from MCC leaders mentioned above (and which was published here) is copied in full below the fold.
6 CommentsThe Equality and Human Rights Commission has published Legal intervention on religion or belief rights: seeking your views.
Last month we announced that we had applied to intervene at the European Court of Human Rights and we have now been granted permission to do so.
We are considering using the four cases already before this Court as a platform to advise on and clarify the interpretation of human rights laws. We are seeking your views on our proposed submission on the human rights elements of the four cases claiming religious discrimination, and separately, whether the concept of reasonable accommodation has any useful practical application in cases concerning the manifestation of religion or belief…
And there is a 6 page consultation document (.doc)
The essence of their position is this:
We propose to intervene in:
• Eweida and Chaplin on the basis that the Courts may not have given sufficient weight to Article 9(2) of the Convention.
• Ladele and Mcfarlane on the basis that the domestic courts came to the correct conclusions.
And
We had suggested that our intervention might put forward the idea of extending the concept of reasonable accommodation beyond disability. However, we also know that this idea needs more careful consideration than the timetable for the European Court of Human Rights allows.
So they won’t now be doing that, but they are seeking views on the subject.
13 CommentsNeil Addison reports on his Religion Law Blog about a new use of the Religion and Belief provisions in the Equality Act 2010.
See Abortion and the Equality Act.
…From the facts it was clear that the Hospital had not recognised or accepted that the Nurses had a legal right to refuse to participate. EMA has been held by the High Court, in the BPAS case mentioned, to be an Abortion procedure under the Abortion Act 1967 and as such the Nurses had an absolute right to refuse to participate under the conscientious objection provisions of s4 of the Abortion Act.
Abortion Act 1967 – 4. Conscientious objection to participation in treatment
(1) Subject to sub-section (2) of this section, no person shall be under any duty whether by contract or by any statutory or other legal requirement to participate in any treatment authorised by this Act to which he has a conscientious objectionTMLC wrote to the hospital stating that the Nurses were refusing to work in the Clinic and quoting their rights under s4 Abortion Act. The letter also stated that their belief in the sanctity of life from conception onwards was a philosophical belief protected under the Equality Act and therefore any attempt to pressure them into participating in the Abortion Clinic or to suggest that their refusal would affect their career would be illegal under the Equality Act 2010.
This particular interpretation of the Equality Act has never, to my knowledge, been argued before however since the Courts have accepted that the philosophical belief in Global warming is protected under Equality legislation, see Grainger Plc & Ors v. Nicholson [2009] UKEAT 0219_09_0311 I could see no reason why belief that human life begins at conception should not be equally protected.
The reason for including the Equality Act in the letters to the Hospital was in order to provide the Nurses with additional protections. Section 4 of the Abortion Act though it is clear does not provide any enforcement mechanism and also does not protect a conscientious objector from being pressurised to participate in Abortion, held back in their career due to their pro-life belief or indeed not employed in the first place. However using the Equality Act as well as s4 of the Abortion Act meant that the Nurses would be able to claim Harassment, Victimisation or Discrimination in an Employment Tribunal if they were put under pressure at work because of their reliance on the conscientious objection protection in s4…
Gavin Drake has some further comments on this.
3 CommentsIn June we reported that Catholic Care had been refused leave to appeal by the Charity Tribunal, but noted that the agency’s solicitor had said:
the charity could appeal to the Upper Tribunal for a review of the charity tribunal’s decision not to allow the appeal. He said trustees had not decided whether to do so.
And it is now reported that they have done this. See this from Third Sector Catholic Care given leave to appeal again.
…After a further charity tribunal ruling in June that it would not accept an appeal against the decision, Catholic Care has appealed to the Upper Tribunal, which has the same status as the High Court.
The Upper Tribunal confirmed this week that it would allow the appeal.
Benjamin James, a solicitor at the law firm Bircham Dyson Bell, acting on behalf of Catholic Care, told Third Sector the charity would argue in its appeal that the charity tribunal had failed to properly perform the balancing act required to determine whether discrimination was reasonable given that, according to the charity, the alternative was closing its adoption service.
James said the charity would attempt to overturn the charity tribunal’s ruling that it had not provided sufficient evidence to show that losing funds from the Catholic Church would force it to close the service. The tribunal had suggested the charity could raise money from other sources…
The historical background to this case can be found in this excellent article in Caritas from last October, by Michael King and Fraser Simpson Equality v religious belief. They then go on to comment:
15 CommentsTwo more developments in the previously reported appeal to the European Court of Human Rights of four recent cases involving discrimination in the UK, and the announcement by the Equality and Human Rights Commission that it would intervene in the case. That development was recorded here (12 July), and then here (14 July).
Now the Christian Institute is reporting that Angela Mason, one of the EHRC commissioners has said:
“The commission has already decided not to put forward ‘reasonable adjustment’ arguments if we do continue with our intervention.”
Their source is Pink News which carries further comments from Ms Mason:
“The legal issues are complex but it is a question of harm. And we have to be very careful when the issue is of manifesting religious belief that is about discrimination.”
When asked whether she had been consulted before the EHRC made its announcement, she said: “A press release is a press release. I don’t think it fully represented the opinion of the commission.
“It is important to carefully consider all the points and arguments that have been made and take them into account before we decide to intervene. We haven’t actually been given permission to intervene yet and there are sensitive and conflicting issues.”
Speaking about her personal views, she added: “The balance of reasonable adjustment does not deal in the cases of Ladele and McFarlane.
“If we go back to the issue of harm, there is less harm involved in the wearing of crosses than the view that gay men are less equal.”
The second development is the National Secular Society has announced that it is also going to intervene in the case. See NSS given leave to intervene at ECHR in religious discrimination cases.
4 CommentsSavi Hensman has made a detailed analysis at Ekklesia, see An ill-judged intervention from the Equality and Human Rights Commission.
…If the EHRC were to succeed, Christianity’s reputation would be further damaged among those who come to associate it with institutionalised prejudice and abuse of power.
Christians too could find themselves on the receiving end of ‘conscientious’ discrimination. For instance, at present, if a church were vandalised, a police officer sent to the scene would be expected to do his job sensitively and diligently. This would be so even if he happened to be an ardent atheist in his private life who believed that religion was the source of most of the world’s evil. But if he believed that his belief could override his duty, he might refuse to go.
What is more, discrimination against Christians might appear increasingly justifiable, especially among those who do not know that – in practice – many churchgoers are reasonably sensible, accepting people, very different from the most vocal campaigners against ‘persecution’…
A rather different view comes from Alasdair Henderson at the UK Human Rights Blog. See A leap of faith?
23 Comments…The way forward which the Commission proposes is the concept of “reasonable accommodation” for employees’ beliefs (similar to the ‘reasonable adjustments’ duty employers have towards disabled people). This is an idea that was floated by Aidan O’Neill QC on this blog not so long ago. The EHRC gives an example in its press release of how this could work – “If a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.”
…The EHRC’s announcement has been welcomed by those who felt the Commission had failed to adequately support the right to religious freedom in the past, or even been anti-Christian. However, it has also provoked fierce criticism from some quarters. Some gay rights activists are concerned that this signals a shift in the Commission’s views that might negatively effect gay equality, given the particular difficulties of potential clashes between protection from discrimination on grounds of sexual orientation and protection of religious freedom (see our post on this subject here).
…Rather more strangely, the EHRC’s announcement has been heavily criticised by secularist and humanist lobby groups like the British Humanist Association. It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.
In any event, it will be interesting to see how these cases, and the EHRC’s involvement, develops in the coming months. There are some important questions that will require significant thought. Is an employee’s religious belief really comparable to disability, such that it can be analysed and approached in the same way? How could employers be helped to accommodate employees’ religious beliefs while at the same time ensuring that there is no discrimination in the provision of services to the public? Whatever the outcome, hopefully this move by the EHRC will produce more light and less heat in a particularly difficult and sensitive area of human rights and equality law.
Colin Coward has posted at Changing Attitude about The problem with (gay) bishops and the CNC.
I want to revisit Colin Slee’s posthumously published memorandum about the Southwark CNC process in the light of the subsequently published paper Choosing Bishops – The Equality Act 2010 issued by the Legal Office at Church House and the conversations I had at General Synod in York.
These documents were both originally leaked to the Guardian in May and reported there by Andrew Brown in this article: Church of England tied in knots over allowing gay men to become bishops. (Earlier TA article is here.)
Andrew reported then:
…The document reveals shouting matches and arm-twisting by the archbishops to keep out the diocese’s preferred choices as bishop: Jeffrey John, the gay dean of St Albans, and Nicholas Holtam, rector of St Martin-in-the-Fields in central London, whose wife was divorced many years ago. Eventually Christopher Chessun, then an assistant bishop, was chosen.
John, an able theologian and gifted preacher and pastor, highly regarded in the diocese and a friend of Williams, is celibate but in a longstanding civil partnership with another clergyman. He was forced by the archbishop to stand down after being appointed suffragan bishop of Reading eight years ago, following an orchestrated protest campaign by evangelicals. Holtam’s promotion had been blocked because of his wife’s divorce but he has since become bishop of Salisbury.
At the same time, the Church Times also reported this story, focusing more on the Legal Opinion, in this report: House of Bishops divided on keeping out homosexuals.
Colin Coward goes on to say:
11 Comments…Colin [Slee]’s memorandum revealed information about the culture of the CNC process and the attitude towards two outstanding candidates for the episcopate, one of whom, Nick Holtam, has now been appointed to Salisbury, thanks be to God. The other, Jeffrey John is now the subject of an attempt to permanently block his preferment by the position outlined and the relevant factors listed in the Equality Act document. It is designed specifically to block any further attempt to nominate and appoint Jeffrey.
Colin Slee’s memorandum provides an inside perspective on the effect of the secrecy of the CNC process. Colin complied with the rules but was as open as possible with the candidates he nominated and with the Archbishop of Canterbury. He wrote to both Jeffery John and Nick Holtam telling them he had nominated them as mandatory candidates for Southwark in March 2010. The Archbishop replied but did not say, please don’t nominate either of them. Other people had nominated both candidates.
I have subsequently learnt that both Jeffrey and Nick have been deliberately blocked, one for Southwark and the other for Chelmsford. Who does the blocking? Lambeth staff at the Archbishop’s request?
Three Questions were asked at General Synod last Friday about the Legal Opinion issued as GS Misc 992. They were answered together.
Question 7
Mrs Sue Johns (Norwich) to ask the Chairman of the House of Bishops:
Q. Has the House considered the issues addressed in GS Misc 992?
Question 8
The Revd Canon Simon Butler (Southwark) to ask the Chairman of the House of Bishops”
Q. Given the legal opinion offered in GS Misc 992 (‘Equality Act’) can the House indicate the following:
a. Which individuals or bodies are responsible for weighing and, if appropriate, adopting this opinion as policy;
b. The process by which this opinion shall be weighed and, if appropriate, adopted;
c. How these deliberations will be communicated to this Synod and candidates for episcopal appointment?
Question 9
The Revd Dr Rosemarie Mallett (Southwark) to ask the House of Bishops:
Q. As we have in effect debated paras 14-18 of GS Misc 992 regarding divorce and remarriage at the February Synod, what process does the House envisage to ensure that a debate on the complete paper takes place, recognising that the circulation of a paper to Synod by the Legal Office does not create policy?
The Bishop of Norwich to reply:
A. With permission, I shall answer this and the related questions from Simon Butler and Rosemarie Mallet together.
The Legal Office note was produced in December and made available to members of successive Crown Nominations Commissions and to all diocesan bishops in connection with episcopal appointments. It explains the implications of the legal framework created by the Equality Act so that those making appointments understand the parameters within which they now have to operate. It offers no policy advice. The relevant policy documents are the well known texts referred to in the document, to which must now be added last Friday’s modest supplement from the House.
The policy issue on civil partnerships is now for the review of the 2005 statement and the Church’s stance on same sex relations more generally will be addressed in the consultation document that the House will produce in the light of the listening process in 2013.
Supplementary Question from Simon Butler:
While I welcome the House of Bishops clarity that GS Misc 992 isn’t the policy of the Church, nevertheless it is the legal opinion of the church’s lawyers. Can the Bishop confirm then what freedom the House of Bishops has to depart from this legal opinion?
A. Well, I think what the legal opinion seeks to do is to explain for those involved in episcopal appointments what the law permits. It simply refers back to formal statements of the Church of England’s policy, including statements by the House of Bishops on divorce and civil partnerships, and of course that’s been amended in the light of what the synod decided last February, but it actually offers no policy advice. And the House of Bishops statement is about policy reviews, not prejudging their outcome.
Supplementary Question from Rosemarie Mallett:
Again, we thank you for the clarity of your answer. As part of the review process that will be now ongoing, can we be assured that the House of Bishops will consult with members of the House of Clergy and the House of Laity, before bringing the final consultation document to synod in 2013, so that we have a truly dialogic as well as listening process between now and 2013.
A. Well I think that what we hope for in the 2013 review, which will cover matters related to human sexuality, is to try and create an account of what’s gone on in the listening process, which has included clergy and laity over the course of the past decade or more. And there is a sense in which quite a lot of that work of course has already included clergy and laity, and how that review group will go about its work I can’t say, but it would be very surprising if it did not include consultation with clergy and lay people, to produce the sort of document that we hope would be representative of the mind of the church as a whole.
3 CommentsThe EHRC has issued a clarification of its intentions in this Q and A, which has been reproduced by the Equality and Diversity Forum. See EHRC intervention in cases of religious discrimination. This inlcudes the following passage:
The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others. We want to change the view that there needs to be an either/or situation. The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions.
The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected.
Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date. In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.
Philip Henson on Employment Law Update gives an extensive background briefing in The Equality and Human Rights Commission calls for ‘reasonable accommodation’ for religion or belief.
More comment articles expected soon. Meanwhile, this earlier TA article indicates the views of Trevor Phillips, chair of the EHRC.
Heresy Corner has Equality Commission outrages gays and humanists.
The Church Times carries a news report by Ed Beavan Courts have set bar too high for Christians, says EHRC.
1 CommentUpdated Thursday morning
The Equality and Human Rights Commission has applied to the European Court of Human Rights to be allowed to intervene in several recent cases concerning religious discrimination in the workplace.
The EHRC has issued this press release: Commission proposes ‘reasonable accommodation’ for religion or belief is needed.
Judges have interpreted the law too narrowly in religion or belief discrimination claims, the Commission has said in its application to intervene in four cases at the European Court of Human Rights all involving religious discrimination in the workplace.
If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.
It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses…
The National Secular Society is unhappy, see Equality Commission determined to push religion up the hierarchy of rights.
So is the British Humanist Association, see Equality Commission’s intervention in Christian legal cases ’wholly disproportionate’.
And Stonewall is deeply disturbed, see Stonewall response to EHRC statement on religious ‘discrimination’ cases.
The Christian Institute is however very pleased, see Equality body: Courts have failed Christians and also Humanists and gays fear EHRC intervention.
Updates
Some further reactions:
Christian Concern Equality Commission decides Christians have the right to follow conscience
Andrew Copson at Cif belief The EHRC’s stance on religious rights undermines its credibility
Patrick Strudwick The Equality and Human Rights Commission’s choice is beyond belief
32 CommentsSavi Hensman has written about the presidential address given on Saturday by the Archbishop of Canterbury.
The Church is “the visible sign of a faithful God”, declared the Archbishop of Canterbury. He was speaking at the Church of England’s General Synod on 9 July 2011, in York. He expressed the view that those present were “entrusted with the strength not to abandon and the joy of knowing ourselves not abandoned.”
Rowan Williams made many valuable points in his presidential address to Synod, the Church of England’s key decision-making body. Yet his lack of acknowledgement of the Church’s mixed record raises some concerns…
Changing Attitude has published some comment about the note sent to synod members from the House of Bishops about the Equality Act and the appointment of celibate people in a civil partnership as a bishop.
See Bishops in the church and the Equality Act.
4 CommentsThe House of Bishops sent a note to Synod members about the Equality Act and the appointment of celibate people in a civil partnership as a bishop. The legal advice is discriminatory and unworkable. No priest who is gay, let alone in a civil partnership, is going to reveal their sexual orientation when confronted by five such intrusive questions.
The legal note will simply encourage people to stay in the closet, maintaining secrecy about their sexual orientation for all gay (and eventually, lesbian) clergy who are nominated for episcopal office…
Included in the statement issued just now by the House of Bishops is the following paragraph (emphasis added):
“Among the matters to be considered in the review of the 2005 Statement there is one of some importance which the House did not address in advance of any experience of civil partnerships. This is whether clergy who have registered civil partnerships should be eligible for nomination to the episcopate. The House has concluded that it would be wrong to pre-empt the outcome of the review and that clergy in civil partnerships should not at present, therefore, be nominated for episcopal appointment. The House’s intention is to complete the review, which will need to take account of the legal analysis set out in GS MISC 992 (Choosing Bishops – the Equality Act) during 2012.
As regular TA readers will be aware, the Church of England recently issued “a note on the Equality Act prepared by the Legal Office in connection with episcopal appointments for members of Crown Nominations Commissions and diocesan bishops and their Advisory Groups”. This is the document numbered GS Misc 992.
In connection with this, I wrote last week to Church House to ask some questions about GS Misc 992. One question was this:
Third, there is the issue of being in a civil partnership as a specific item to be taken into account. See paragraph 29, second bullet, and also see paragraph 20, where this is distinguished ( by the conjunction “or”) from “a requirement related to sexual orientation”.
These wordings suggest that the authors of the opinion believe it is permissible to discriminate against a person who is in a civil partnership even if none of the other items listed in the document are applicable. I am at a loss to understand the legal basis for such a position, unless all married candidates are to be similarly discriminated against.
I received this in reply:
21 CommentsThis was a piece of legal advice and the Legal Office stand by it as an accurate piece of analysis of the Equality Act and its application to the Church. It was produced to help those appointing bishops understand what they are and are not entitled to take into account within the law. In particular the Equality Act is quite explicit in making it clear that religious organisations can, in certain carefully defined circumstances, discriminate on the grounds of someone being in a civil partnership. The note offers no policy or operational advice on what appointment panel should do.
Following on from this announcement, the Sunday Times carried an advertisement for a new Communications Director which you can see here. Further information about the post can be found here and then here.
But what has attracted some attention, for example here, and over here, is the sentence in the advertisement that reads as follows:
This is no ordinary Communications Director job. We are looking for somebody who will share our values and whilst not necessarily an Anglican, is a practising Christian (this post is subject to an occupational requirement that the holder be a practising Christian under Part 1 of Schedule 9 to the Equality Act 2010 because of its representational role and its responsibility for maintaining a Christian ethos within the national Church, as one of its senior officers).
Now, this has been assumed by some people to be a reference to Clause 2 of Part 1 of Schedule 9. That clause is the one which contains all the exemptions relating to gender, marital status, sexual orientation and so forth.
However, I do not believe that is what they meant to reference. I believe the intention was to reference Clause 3 of Part 1 of Schedule 9. This reads (scroll down at the previous link):
Other requirements relating to religion or belief
3 A person (A) with an ethos based on religion or belief does not contravene a provision mentioned in paragraph 1(2) by applying in relation to work a requirement to be of a particular religion or belief if A shows that, having regard to that ethos and to the nature or context of the work—(a) it is an occupational requirement,
(b) the application of the requirement is a proportionate means of achieving a legitimate aim, and
(c) the person to whom A applies the requirement does not meet it (or A has reasonable grounds for not being satisfied that the person meets it).
This is the clause that transposes into the Equality Act 2010 the exemption formerly contained in The Employment Equality (Religion or Belief) Regulations 2003. This exemption was, and is, entirely separate and distinct from others which were formerly contained in the Sex Discrimination Act 1975, as amended and The Employment Equality (Sexual Orientation) Regulations 2003. All of these are now bundled into Clause 2.
So, why have other interpretations been put upon this advertisement? I think there are two causes.
The first is the febrile atmosphere which has arisen following the official publication of the (previously leaked) legal advice issued about Choosing Bishops – Equality Act 2010.
The second is the fact that during the passage of the Equality Act, Secretary General William Fittall gave evidence to a parliamentary committee in which he specifically cited this job as an example of a senior post, likely to be held by a lay person, which he considered should fall within the ambit of the Clause 1 exemptions. Here is what he said at the time. The context of his remarks was a Labour government proposal incorporated in the draft bill to modify the wording of the Clause 2 exemption to be more explicit about who was to be included. This was fiercely resisted by the CofE, and was the reason why a large number of bishops turned out to vote in the House of Lords in favour of an amendment which deleted the proposed changes. The amendment passed, and so the scope of the exemption today remains exactly what it was before.
It is therefore understandable that some would now be suspicious. And, if my interpretation of the intention to invoke only Paragraph 3 is correct, it might be helpful if future advertisements were worded more precisely.
The official CofE response to queries on this is as follows:
8 Comments‘The occupational requirement that the postholder be a practising Christian means what it says, neither more nor less. Staff are appointed to senior positions in the national institutions of the Church of England by fair and competitive processes. They have to be able to show that they can serve it in all its diversity and operate its equal opportunities policies. Suggestions that appointments are made in pursuit of a particular cultural or partisan agenda are completely unfounded.’
Church of England press release:
The Church of England has today submitted its response to the Government’s consultation on Civil Partnerships in Religious Premises.
A Church of England spokesman said: “Given the decision that Parliament has already taken to amend the Civil Partnership Act 2004 in the Equality Act 2010, the response focuses on the need to assure that the forthcoming regulations continue to provide unfettered freedom for each religious tradition to resolve these matters in accordance with its own convictions and its own internal procedures of governance.
“That means that there needs to be an ‘opting in’ mechanism of the kind that the Government has proposed. In the case of the Church of England that would mean that its churches would not be able to become approved premises for the registration of civil partnerships until and unless the General Synod had first decided as a matter of policy that that should be possible.”
The full text of the submission that addresses the specific questions raised by the consultation is set out below.
Some key passages relating to whether the Church of England will allow its premises to be so used are copied below the fold (emphasis added).
33 Comments