[Miguel]

http://www.christianconcernforournat...iefingPack.pdf

The Lawyers’ Christian Fellowship

BRIEFING:
11th January 2007
The Equality Act (Sexual Orientation)
Regulations (Northern Ireland) 2006

Key information

• The full text of the Equality Act (Sexual Orientation) Regulations (the “Northern Ireland SORs”)
can be found at: http://www.opsi.gov.uk/sr/sr2006/20060439.htm. The Northern Ireland SORs
are Statutory Rule 2006 No. 439 and were made on the 8th November 2006 and laid before
Parliament on the 24th November 2006.

• There are parallel SORs being drafted for England, Wales and Scotland. They have been delayed
for 6 months and once finalised, will come into force in April 2007.

• The Northern Ireland SORs are intended by the Government to ‘outlaw sexual orientation
discrimination by goods and services providers in both the public and private sector’ (from pg 7
of the Government consultation paper into the Northern Ireland SORs).

• Although many organisations (including our own) have questioned the need for the SORs because
of a lack of empirical evidence showing that such discrimination currently takes place, Christian
organisations support the principle of outlawing unjustified discrimination on the grounds of
sexual orientation.

• The opposition to and support for the Northern Ireland SORs is therefore not a case of ‘Christians
v homosexuals’ as some have sought to portray it.

• The opposition to the Northern Ireland SORs from Christians is based on extremely important
issues of freedom of religion and freedom of conscience. It is a question of balancing rights.


The Northern Ireland SORs came into force on the 1st January. Because they have proceeded
by way of the negative resolution procedure, there are 40 days from the date the Regulations
were laid (24th November) in which either House can annul them.

• The 40 day period for annulling the Northern Ireland SORs expires on the 21st January.

• Amendments to the Regulations can only be made by one of the Houses voting to annul them
(this would allow amended Regulations to be re-introduced by the Government).

[Miguel]

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.

[Miguel]

Substantive issues relating to the Regulations
• The Northern Ireland SORs have been controversial primarily because of the impact they will
have on freedom of religion and freedom of conscience for Christians.

• The primary concern held by hundreds of thousands of Christians, is that a law which is intended
to remove discrimination on the grounds of sexual orientation inadvertently discriminates heavily
against Christians.

• The following information highlights just four of the areas in which the Northern Ireland SORs
currently create inequality by making it illegal for Christians to continue to freely hold and profess
the Biblical teaching on sexual morality:
1) Freedom of religion

• In Regulation 16 of the Northern Ireland SORs, there is an exemption from the nondiscrimination
requirements for organisations whose purpose is to practice, advance or teach a
religious belief. This exemption acts to prevent, for example, a vicar in a church from being
required to carry out a blessing of a practising homosexual couple.

• That this exemption is necessary recognises a basic principle: the law should not force Christians
to act contrary to the Bible’s teaching by requiring them to actively condone any extra-marital
sexual conduct (heterosexual or homosexual).

• However, Regulation 16 applies only to organisations – individuals are not protected. This is
illogical: Christianity quite clearly makes the same requirements of an individual (that they do not
condone sinful behaviour) as it makes of a Christian organisation such as a church.

• The Northern Ireland SORs are inconsistent and discriminatory because they tell a Christian that
whilst in church they have freedom of religion, freedom of conscience and freedom of expression
to be taught that homosexual practice is a sin, outside the doors of the church, legislation
makes it illegal for them to refuse to promote and assist homosexual practice.

• Under the Northern Ireland SORs 1) it will be illegal for a Christian printer in Northern Ireland to
refuse to print material promoting gay sex, 2) it will be illegal for an Islamic wedding
photographer to refuse to attend and take publicity photographs at a gay Civil Partnership
ceremony and 3) it will be illegal for a Jewish conference centre to refuse to allow its premises to
be used by an organisation promoting homosexual practice.

• There are myriad other examples. One of many e-mails we have received about this issue stated:
“The Bible clearly teaches the difference between the homosexual person (whom God loves) and
homosexual behaviour (which God abhors). Christianity does not just apply on Sunday, it is the
framework for living seven days a week, 24 hours a day. I work as a self-employed computer
consultant. These regulations would mean I could be prosecuted [sic] if I refuse to build a
website promoting homosexual behaviour for a homosexual rights organisation or individual. Or,
for that matter, if I refuse to produce a leaflet or newsletter promoting homosexual behaviour.”

• The Northern Ireland SORs do not afford the same protection given in Canada where in 2002 the
Ontario Superior Court of Justice held that a Christian printer could not be compelled to print gay
or lesbian material where this would be contrary to his fundamental religious beliefs (Ontario
Human Rights Commission v Brockie).

[Miguel]

2) Publicly funded religious organisations


• According to the Northern Ireland Sexual Orientation Regulations (Regulation 16(8)) a religious
organisation that would otherwise be exempt from the Regulations loses that exemption if they
provide their goods, services etc on behalf of a public authority under the terms of a contract.
Most often this will be a funding contract.

• Thousands of Christian organisations lovingly and caringly provide essential services to the public
across the country – whether community centres, homeless shelters, services for the elderly,
drug rehabilitation or others. Almost all work in partnership with the local authorities, and many
receive funding from those authorities for the excellent work they do.

• The fact the exemption will not apply to such service providers means that those which wish to
refuse to promote or assist homosexual practice will lose their funding and therefore will possibly
be forced to shut down. The protection afforded to charities by Regulation 26 is only very limited
– this is indicated by the fact that Regulation 16(8) expressly ensures charities (and other
organizations) who receive public funding are not exempted from the non-discrimination
provisions of the SORs.

• The problem with the SORs is not that, for example, a Christian community centre which receives
public funding wants to refuse to serve food to homosexuals. Of course Christians would not wish
to do this. The problem is that the same Christian community centre does want to be able to say
(as they are currently able) 'we believe that all people are created as equals but we cannot allow
our premises to be used to promote something contrary to the Bible' and therefore turn away a
homosexual group wishing to use the centre for such purposes.

• The recent case (featured in The Telegraph, 12/12/06) with Haringey Council illustrates the point.
The Christian lady running the voluntary Family Centre explained very clearly to the local council
that her position was "We welcome gay people but we will not promote gay values". This was not
enough to satisfy the local council who threatened to withdraw funding from the centre. The
Northern Ireland SORs will have the same impact in hundreds of other cases.

3) Harassment
• Contrary to the clear position of the Government consultation into the Regulations, the published
Northern Ireland SORs outlaw harassment on the grounds of sexual orientation (Regulation
3(3)).

• The Government consultation paper (at page 47) had stated: “On the basis of the complex
arguments put forward we are minded to accept that it is not appropriate to legislate
for harassment within these Regulations. We feel that the future Single Equality Bill
will provide a more appropriate vehicle to consider harassment in terms of goods,
facilities and services, and allow more time to deal with the complex arguments that
have been put forward”.

• None of the 21 questions asked of the public in the consultation paper made any reference to
harassment. Despite this, the Regulations laid before Parliament do make harassment on the
grounds of sexual orientation illegal.

• Only 9 of the 373 individuals and organizations who responded to the consultation sought the
outlawing of harassment through the Regulations (page 9 of the consultation).

• The new law on harassment is worryingly broad in ambit. As the Northern Ireland SOR
consultation openly acknowledged (at page 47) “During the passage of the Equality Act 2006,
members of the House of Lords argued strongly that, while the concept [of a harassment law]
sat more easily in the employment sphere, it was extremely difficult to define what constitutes
violation of dignity in terms of goods or service provision”.

• The scope of the harassment provisions relies heavily on the perception of the person who feels
harassed: if someone (of any sexual orientation) feels their ‘dignity has been violated’ or that
they have been subjected to a ‘humiliating or offensive environment’ then they will be able to
sue the person involved in a stand-alone ‘injury to feelings’ claim.

• There is a concern that the courts may be burdened with unmeritorious claims by those who are
sensitive about their sexual orientation and who dislike and seek to silence the legitimate
opinions of others.

• We also believe that the breadth of the harassment provisions will lead to an unacceptable
chilling of freedom of speech and expression in a similar way to that threatened by the original
version of the Racial and Religious Hatred Bill which was defeated in Parliament in January 2006.
The high level of the standard penalties for an injury to feelings claim under existing
discrimination laws (£500 - £5000 for a one-off offence rising to £5000 - £15,000 if the offensive
action has occurred on a few occasions) further increases the likelihood that the Regulations will
have a chilling effect on free speech.

• The following example illustrates these points: A member of the ‘lesbian and gay Christian
movement’ goes to a Christian bookshop in his home town in Northern Ireland. The bookshop
contains many books, some of which refer to homosexual practice as a sin. There are posters on
the walls of the shop promoting marriage as the only right sexual relationship and the only right
context for bringing up children. If the man felt the presence of this material ‘violated his dignity’
or created a ‘hostile environment’ he would be able to bring a legal action under the Regulations
claiming that he had been unlawfully harassed. The test for whether the claim would succeed is
whether it is reasonable (and the court is required to pay special attention to the claimant’s
perception of the situation) for the man to have felt harassed. It would certainly be an arguable
case. If the man won, even if the alleged harassment occurred on one single occasion, the
bookshop could be ordered to pay him up to £5000.

• Crucially, because the religious exemption in the Regulations (Regulation 16) does not cover
harassment, churches are also subject to the harassment provisions. For example: a church
welcomes a homosexual couple. After a number of months of attendance, whilst the homosexual
couple are clearly continuing in their practising homosexual relationship, the vicar speaks to
them in private and explains that while they are welcome to continue attending church and
seeking God, he does not feel he is able to give them communion while they are unrepentant of
their extra-marital sexual behaviour. Should the couple take offence at this, then they would
have an arguable case that their dignity had been violated by this action of the vicar, and could
sue the church.

[Miguel]

4) Education

• The Regulation 16 exemption does not cover faith schools (Regulation 16(2)(b)). Thus there is no
protection in the Northern Ireland SORs guaranteeing teachers in faith schools the right to teach
that marriage is preferable to a homosexual civil partnership or that marriage is the best context
for the upbringing of a family, even though these are beliefs and values adhered to strongly in
Northern Ireland. The Council for Catholic maintained schools is also covered under harassment
or discrimination on sexual orientation in carrying out education orders and the curriculum is also
affected (by virtue of Regulation 10(b) and the Education (Northern Ireland) Order 2006 (NI. 11).

• Because of the presence of the harassment provisions (see above), the potential for an aggrieved
student to sue his faith school if they taught from the Bible about the importance of marriage and
all sex outside marriage is wrong, is alarming: he would simply need to argue that as a gay
student, this teaching put him in a ‘hostile’ or ‘insulting’ environment.

• By way of example: a Church of England school provides education, and were the Regulations to
become law without an exemption for faith schools, it would be illegal for that school to have a
‘bias’ on their curriculum in favour of heterosexual relationships – this would discriminate (it
would constitute ‘less favourable treatment’ (Regulation 3(1)(a)) against any homosexual pupils
or homosexual parents who wanted there to be teaching about the acceptability of homosexuality
and who wanted to be given relevant information regarding homosexual relationships. And yet
many parents in faith schools would want teachers to be free to articulate such principles about
sexual chastity. This does not seem to accord with Article 9 ECHR (below).

• There are substantial concerns that these Regulations may be contrary to Article 9 of the
European Convention on Human Rights (ECHR) which states that “Everyone has the right to
freedom of thought, conscience and religion, this right includes freedom to change his religion or
belief and freedom, either alone or in community with others and in public or private, to
manifest his religion or belief, in worship, teaching, practice and observance”.
Conclusions

• The Lawyers’ Christian Fellowship urges careful consideration of the procedural and
substantive problems which beset these Regulations.

• The Northern Ireland SORs should not be allowed to set an unworkable precedent for
British law: they pre-empt the England, Wales and Scotland SORs which have been
given much more detailed and careful scrutiny. The Northern Ireland SORs should not
be used to undermine this.

• The Lawyers’ Christian Fellowship believes the Northern Ireland Regulations should be
annulled in order that amendments can be made so that exemptions can be included in
order to i) ensure that the ‘non-discrimination on the grounds of sexual orientation’
provision is targeted correctly at outlawing irrational prejudice against homosexuals
whilst ii) ensuring that Christians are free to continue to adhere to and uphold the
Bible’s teaching that all extra-marital sexual practice is wrong.