Lord Mackay of Clashfern: Religion and sexual orientation are characteristics which should be afforded equal protection under the law

Lord Mackay of Clashfern served as Lord Chancellor under both Margaret Thatcher and John Major between 1987 and 1997. He is also a former Lord High Commissioner to the General Assembly of the Church of Scotland.

Concerns about the Equality Bill - amendments to which the House of Lords has begun to consider this week - have been growing in recent months and culminated on Monday in the publication of a timely book to which I have written the foreword, A Little Bit Against Discrimination? The publication draws attention to a series of failings in the Equality Bill but particularly those pertaining to the freedom of religious bodies to employ people living their faith.

The Bill proposes that churches and other faith bodies should only be able to appoint people practising the faith with respect to sexual ethics if the role in question is wholly or mainly concerned with liturgy or ritual or promoting or explaining doctrine. Legal opinions confirm that this won’t cover priests or pastors, let alone anyone assisting them, because church leaders don’t actually spend most of their time leading liturgy and ritual and explaining and promoting doctrine. These activities tend to be very focused on Sunday services which only occupy a few hours.

During the week, however, church leaders are very much engaged with pastoral and other responsibilities. Mindful of this, it is not clear how, if the Bill became law, many churches would be able to appoint pastors, ministers or priests, practising their particular faith tradition and thus it is not clear how they could continue to operate. Similarly, given that no positions in Church welfare projects are concerned wholly or mainly with liturgy, ritual, explaining and promoting doctrine, many bodies, especially those from the Evangelical and Catholic traditions, could not be confident of being able to appoint staff properly practising the faith to any position and thus, again, it is not clear how they could continue to operate. This change in employment law constitutes a very grave and worrying attack on religious freedom in this country. How have we arrived at such an unfortunate place?

Concern for minorities first arose in the modern era in the context of talk of the ‘tyranny of the majority’ and an appreciation of the fact that laws designed for the majority often had very undesirable and often unintended consequences on minorities. In this case the needs of minorities were addressed through the provision of exceptions in laws designed for the majority. Exceptions thus played an absolutely crucial and very progressive role in the protection of minorities.

In time government quite rightly moved beyond catering for minorities merely by providing them with exceptions from aspects of laws designed for the majority, and started developing laws specifically for minorities, governing the interaction of others with them. Initially this was advanced in a sensible manner but over the last few years government has become more and more reluctant to provide appropriate different treatment under the law where laws relating to minorities are concerned. This is a major problem because in just the same way that laws designed for the majority can have negative and destructive implications for minorities, so too can laws designed for one minority strand have negative and destructive effects on other minority strands.

A good example of this relates to the goods and services legislation in the Bill.

On the one hand, the religion and belief goods and services provisions are such that if a gay printer were approached by an Evangelical or Catholic theologian and asked to print a book advancing the view that same-sex sexual practice is ‘sinful,’ the printer would be liable to be prosecuted if he refused, explaining that he found the author’s religious views offensive and did not want to be made complicit in promoting them.

On the other hand, the sexual orientation goods and services provisions mean that if a gay rights organisation asked an Evangelical or Catholic printer to print a book advocating same sex-sexual relationships, the printer would be liable to be prosecuted if he refused, explaining that he could not print the material without becoming complicit in advancing a view contrary to his deeply held religious beliefs.

It is not the purpose of liberal democratic government to manage diversity by trying to compel people to violate their consciences in this way. Such an approach certainly won’t help promote understanding and goodwill between different communities. It is the purpose of a liberal democratic government to make space, space for people to be what they are, true to themselves. 

The job of work set before House of Lords which began on Monday is particularly important given the lack of scrutiny provided by the Commons on account of the lack of time provided by the Government. Over one hundred amendments tabled by MPs at Report Stage were not considered, including all those relating to disability.

One Commons amendment which attracted a large number of co-signatories, but was none the less denied proper debate, was Ann Widdecombe’s amending the goods and services legislation that resulted in the closure of Catholic adoption agencies. When the legislation in question was introduced in 2007, it was in the form of unamendable secondary legislation. Parliament simply had the choice of voting for it or against it. There could be no fine tuning. This meant that those with concerns about the impact of the legislation on faith based adoption agencies had to decide whether they were prepared to vote all the legislation down because of this problem.

Miss Widdecombe saw that the passage of this Bill provides Parliament its first opportunity to actually amend the goods and services legislation to make space for Catholic and other forms of adoption agency. Sadly she only spoke for four minutes before the parliamentary guillotine required her to sit down. Hopefully, in the Lords, where we don’t have guillotines, we will be able to have the debate that the democratically elected house clearly wanted but was denied.

In closing, for anyone wondering about the title of the book, A Little Bit Against Discrimination?, it’s taken from Harriet Harman’s somewhat enigmatic explanation in 2007 that the Government could not make provision for Catholic adoption agencies by changing its sexual orientation goods and services legislation because, one ‘cannot be a little bit against discrimination.’ The difficulty with this response is that religion is just as much a protected characteristic in UK law as sexual orientation.

To be told that you can either continue receiving public monies and violate your conscience or cease, losing vocation and livelihood and denying parents the option of accessing an important service in the context of a Catholic ethos, seems pretty discriminatory to me, especially when so many other agencies provide adoption services for same-sex couples.