THE Equality Act 2010 will apply to all Crown appointments of clergy when it comes into effect later this year, probably in October.
Until now, anti-discrimination law has not covered clerical office-holders in the Church of England. But the definition of “public office” in the new Act will bring within its scope all posts to which appointment is made on the recommendation of a minister of the Crown.
Another category of posts defined in the Act is that of “personal office”-holders. But a Church House spokesman said last month that “That definition probably applies only to stipendiary curates. It does not apply to incumbents or priests-in-charge who are not ‘appointed to discharge a function personally under the direction of another person’.”
One consequence of this change is that legislation to allow women bishops in the C of E will need specific provisions to widen the existing exemptions. As the revision committee’s report explains: “essentially, the Equality Act provides . . . that a person can be excluded from consideration for appointment to a public office altogether on the grounds of sex,” but would not “allow a woman to be appointed a diocesan bishop but on the basis that . . . she would refrain from carrying out certain functions herself (because of her sex)”.
This is not the case under the current Sex Discrimination Act 1975, which contains an express exemption in wider terms for ministers of religion. Modifications made to this exemption in 2005 included the repeal of an earlier specific provision inserted in the Priests (Ordination of Women) Measure 1993.
Clause 7 of the Draft Bishops and Priests (Consecration and Ordination of Women) Measure contains an exemption from relevant clauses in the Equality Act that deal with the “terms on which an appointment is made”. The Government Equalities Office told Church House staff that “We have no doubt that Parliament will consider very carefully, and with good will, any measure that the Church of England as a whole ultimately feels is necessary to achieve this objective.”
The 1975 Act will be repealed at the same time as the new 2010 Act comes into effect, but the current exemptions in the former are carried forward in Schedule 9 of the new Act.
A Church House spokesman said on Friday, however: “In so far as anything in the 1993 Measure conflicts with Part 5 of the Equality Act it is rendered lawful by Schedule 9 paragraph 2 of the Act. But not all the arrangements contained in the 1993 Measure do conflict with Part 5 of the Act because Part 5 does not cover all the clergy.”
When asked whether it agreed that many clergy were not covered by the Equality Act, a government spokesman said on Monday: “The policy is to provide protection to those in employment and employment-related positions (meaning, roughly, where someone has sufficient direction and control over another such that discriminating against them could seriously impede their ability to obtain/engage in gainful work, thereby compromising their ability to provide for themselves), implementing our EU obligations and domestic policy. It is for the tribunals to decide whether any definition is satisfied on the facts of each case.”