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Other relevant information

On the 11th December a debate took place in the transitional Northern Ireland Assembly on a
motion requesting that the Northern Ireland Secretary, Peter Hain, withdraw the Northern Ireland
SORs. Members of the Legislative Assembly (MLAs) were split with 39 voting to demand the
withdrawal of the Regulations and 39 voting to keep them.


• In a recent report by the Labour ex-minister Lord Filkin in the Parliament ‘House’ magazine, he
stated that MPs and Peers “should be less inhibited about rejecting secondary legislation”.
In the same week the Lords Committee on the Merits of Statutory Instruments (of which Lord
Filkin is chairperson) recommended that “These [Sexual Orientation] Regulations are drawn
to the special attention of the House on the ground that they give rise to issues of
public policy likely to be of interest to the House” (See the House of Lords, ‘Merits of
Statutory Instruments’ – 3rd Report, 7th December, page 2).

• The importance of the Merits Committee’s recommendation is heightened by the Labour Peer
Lord Cunningham’s report in November that Parliament ought to give serious consideration to the
need to intervene when Regulations were drawn to the special attention of the House by the
Merits Committee. The Regulations are also currently being considered by the Joint Committee on
Statutory Instruments.
Procedural issues relating to the Regulations

• The Cabinet Office Code of Practice on Written Consultations (2000) which should “be generally
regarded as binding on UK departments and their agencies, unless Ministers consider that
exceptional circumstances justify a departure” states that “12 weeks should be the standard
minimum period for a consultation”. The fact that the Northern Ireland SORs only had an 8
week consultation period is exacerbated by the fact that the period of consultation occurred
over August and September when many individuals and organisations who would otherwise have
responded were away for the summer.

• As at the 9th January 2007, the Government will have spent over 7 months working through the
‘difficult issues’ (to quote from Ruth Kelly) raised by the responses to the consultation into the
England, Wales and Scotland SORs. In contrast, the Government spent only 6 weeks working
through the responses to the Northern Ireland SORs before they published them.

• According to the foreword of the NI consultation (at page 7), the Government “look forward to
hearing your views on our proposals so that we can take these into account”. 373 individuals
and organisations (many faith-based) responded to the Northern Ireland consultation, but the
Government published the final NI Regulations on the 8th November (see the link to the
published Regulations on page 1, above), before they published any response analysing or
addressing the submissions they had received from the public (that response was not published
until the 27th November).

• In the NI consultation the Government outlined their preliminary position on 17 issues in relation
to the Regulations. The final published Regulations have followed each one of these 17
preliminary positions. It appears that the Government did not pay any attention to the
consultation responses.

• 269 of the 283 people who responded to Q12 of the consultation were of the view that the
exemptions from the Regulations should not be limited to primarily doctrinal activities (see page
7 of the Government Response to the Consultation on the Northern Ireland SORs).

• According to the Government’s own analysis of the responses to the consultation, one of the
three main issues raised was the narrow nature of the religious exemptions proposed: “a
majority of respondents, mainly private individuals, expressed real concern about the
application of the Regulations to religious organizations and this was linked to both
education and use of premises” (see page 2 of the Government response). Despite this (as is
explained below) the exemptions given in the Regulations are extremely narrow.

• By contrast Page 9 of the Government analysis of responses to the consultation makes it clear
that the harassment provision in relation to education was introduced as a result of a request by
only 9 respondents (of a total 373).

• The approach in Northern Ireland does not appear to match the rigour and scrutiny that the
Government have committed themselves to in England, Wales and Scotland, where Meg Munn
(the relevant minister) said (in a letter to LCF dated 17th November 2006) “it is only right that
we take time to consider the responses [to the E,W&S consultation] fully and carefully, and we
are currently considering decisions about the drafting of the Regulations in the light of the
consultation findings. This is a complex area and we need to make sure our proposals are
workable and provide effective protection from discrimination […] We will publish a
Government response to the consultation setting out our conclusions in the light of the
consultation findings in good time to meet the timetable for commencement”.

• The use of the negative resolution procedure, with no automatic debate or vote in either House,
on an issue of such controversy and importance is an extremely worrying and unique
constitutional precedent.

• The principles of the NI Regulations have such serious implications for a community with the
strong religious views held in Northern Ireland that it seems mistaken for direct rule powers to be
used to push through the law without consulting the democratically elected representatives of the
Northern Ireland assembly. The Government’s refusal to do so does not sit comfortably with their
plea in the St Andrew’s agreement that whilst devolution is re-established, politicians act ‘in good
faith and in a spirit of genuine partnership’”.

• The rushed nature of the procedure used for the Northern Ireland SORs has already led the
Government to make their own amendment to them by introducing a second statutory
instrument (No. 466) to remove a drafting error in relation to the harassment provisions.