Get in touch
020 7489 2165
info@employmentlawadvocates.com
Employment Law Advocates
Hamilton House
1 Temple Avenue
London
EC4Y 0HA
Blog
It has been reported that the House of Lords has defeated several government amendments narrowing the exemption from sexual orientation discrimination currently allowed to religious organisations. This is slightly misleading because one form of the wording rejected appears in the original draft of the bill and the only amendment since was at the request of church leaders, to remove any doubt that ministers will be covered by the exemption. This followed a legal opinion by John Bowers QC for the Christian Institute. What is particularly unfortunate is the suggestion in some media sources that the rejection of the government proposals reflects a concern based on this opinion, even though the danger of the bill applying to ministers had been removed. In fact, it is opposed because the churches (no other religions have pushed the issue) want the right to be able to discriminate against lay staff who are homosexual.
For many people, this raises all sorts of issues including, unsurprisingly, the presence of the Lords Spiritual, who undoubtedly swung the result. Fortunately, however, for those who believe in equality, democracy and secularism, the intervention will prove to be entirely futile. The approved amendment restores the wording of the Sexual Orientation Regulations, which have been declared by the European Commission, in a recent reasoned opinion, to be inconsistent with the Employment Equality Framework Directive. This leads to the threat of action against the United Kingdom in the European Court of Justice and, therefore, the likelihood that the Parliament Act will used. It is also probable that, as it is a matter of compliance with European law, the government can make secondary legislation to force it through.
Even if the amendment were to survive, it would not last long against a challenge in a higher court. The government has stated that its proposed wording does not change the legal position and this is basically correct. The Sexual Orientation Regulations would have to be interpreted consistently with the Directive and the same will apply equally to the Equality Bill. The fact that the amendment is clearly intended to evade the Directive will not help and, if anything, it will be counter-productive. Churches may be afraid that they will be subjected to a few months of tricky litigation at a local employment tribunal but they are now faced with the possibility of dragging it out for several years, including a visit to Luxembourg.
Recent News Articles
-
Christmas and New Year Office Closure
Our office will be closing for the holiday period at 12.00pm on Friday 23rd December 2011 and will reopen again until 10.00am on Tuesday 3rd January 2012. Advocates will ...
-
Employment Law Advocates is on Twitter
Follow us on Twitter @employmentlawad
-
Right to legal representation
An important decision was handed down by the Supreme Court yesterday when it overturned the decision of the Court of Appeal in R (on the application of G) v The Governors ...
Comments
Cecil Finlay / 02-Feb-2010 says:
Glad to see such unbiased reporting…..Not…!!!
It’s not hard to tell on which side of the argument the author of this article sits…
Neil Addison / 02-Feb-2010 says:
With the Utmost Possible Respect to the author of this piece he seems to be making two completely contradictory points
(i) that the changes proposed by the government in the Equality Bill do not change the existing legal position as set out in the current Sexual Orientation regulations and
(ii) that the decision by the House of Lords to restate the existing provisions in the Equality Bill fundamentally change the Bill.
In addition when saying that the decision by the House of Lords will be overruled because of “reasoned opinion” by the European Commission both he, and the Commission, are ignoring the fact that the question of whether the exemptions in the Regulations complied with the Directive was carefully considered by the High Court in the case of Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 In that case the Judge clearly stated that the European Directive had been properly implemented by the British Employment Regulations and the exemptions for religious organisations set out in those regulations were legal.
Nobody has appealed that decision to the European Court of Justice or to the UK Supreme Court and therefore that decision by the High Court represents the current legal position.
In a society governed by the rule of law courts decide what the law is and a legal opinion, however “reasoned” it may be, cannot overrule or take precedence over a decision by a court.
The High Court is entitled to have its decisions respected and supported by the British Government and Parliament. Decisions by national courts on questions of European Law can only be overruled by the European Court of Justice and not by the bureaucrats of the European Commission no matter how “reasoned” their opinions may be.
James Medhurst / 03-Feb-2010 says:
My point is not that the House of Lords have changed the Bill. My point is that they have tried to do so although, ultimately, they are bound to fail. However, there will be a small number of claimants disadvantaged in the time that it takes to go to the ECJ. In any event, it is unhelpful to have laws appearing wider than they are as this can discourage legitimate claims and makes errors of law more likely.
Amicus says that the test is a narrow one but a wider test was applied by a tribunal in Reaney v Hereford Diocesan Board (although the church still lost). The problem is that the old test gives far too much weight to avoiding offence to members of a religion, many of whom will object to youth workers, for example, being gay. Youth workers are a very important category of people about whom Amicus and, as far as I know, advocates of the amendment, have failed to state a clear position. This troubles me greatly.
I do not claim that I am unbiased. This is a blog, after all.