Anglican Mainstream

20th November 2006
IMPORTANT INFORMATION REGARDING THE
NORTHERN IRELAND SEXUAL ORIENTATION REGULATIONS

You may be aware that the controversy surrounding the Sexual Orientation Regulations, SORs, proposed for England, Wales and Scotland, has led Ruth Kelly to delay their implementation by 6 months in order to deal with what she described as ‘difficult issues’. So far, the Government has spent over 24 weeks working through the responses to the consultation into these Regulations. Those responses have highlighted the difficulty of balancing the competing right to religious freedom and right to freedom from discrimination on the grounds of sexual orientation. The Regulations have not yet been published and will not be in force until April 2007.

Despite this, only 6 weeks since a separate consultation closed into the almost identical Northern Ireland SORs, the Government has already published the Regulations, ready to rush them into force by January 1st. This means that the laying of the NI SORs before Parliament for a vote is imminent. Please note: once the SORs are laid before Parliament, there is no opportunity for amendments to be made. The NI SORs can be found at http://www.opsi.gov.uk/sr/sr2006/20060439.htm. Their official title is “Statutory Rule 2006 No. 439 ‘The Equality Act – Sexual Orientation – Regulations Northern Ireland 2006’”.

This information is of grave concern for a number of reasons outlined below. We urge you to read this letter and to support our proposal that the Northern Ireland Regulations should not be pushed through while ministers and civil servants are still seeking a principled resolution to the problems identified with the SORs proposed for England, Wales and Scotland ‘the E,W&S SORs’. The Northern Ireland Regulations should not be allowed to set an unworkable precedent for British law. They should not be used to undermine the careful consideration that is being given to the production of the E,W&S SORs.

Crucial concerns regarding the procedure and substance of the Northern Ireland Regulations and the undermining of the ongoing process regarding the England, Wales and Scotland Regulations

1. Contrary to the clear position of the consultation document, the published Northern Ireland SORs introduce a worryingly broad new law on harassment.

The NI consultation paper 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, only 6 weeks later the published NI Regulations do make harassment on the grounds of sexual orientation illegal.

2. The new law on harassment is unworkable and dangerously broad in ambit.

As the NI consultation openly acknowledged “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 is extremely broad and 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 for injury to feelings. We are concerned 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 earlier this year. The high level of the standard penalties for an injury to feelings claim for someone who feels harassed, £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 NI SORs will damage free speech.

The following example illustrates these points: A homosexual man 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. Even if the homosexual man had no interest in receiving goods or services from the bookshop, if he felt the presence of this material ‘violated his dignity’ or created a ‘hostile environment’ he would have a strong case under the Regulations that he had been unlawfully harassed. If he won, even if the alleged harassment occurred on one single occasion, the bookshop could be ordered to pay him up to £5000.

3. The Government appear to have ignored the views of the public as expressed in the consultation.

The NI consultation paper closed only recently on the 25th September. Despite the fact that a large number of organisations, many faith-based, responded to the consultation, the Government published the final NI Regulations on the 8th November, before any Government response analysing or addressing the submissions received from the public. This does not sit comfortably with the minister Meg Munn’s assertion – in relation to the E,W&S SORs-that “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” , letter from Meg Munn to LCF, 17th Nov 2006. We are of the firm opinion that the process in Northern Ireland should be just as rigorous as that which the Government have committed themselves to in England, Wales and Scotland, where Meg Munn has said, in the same letter, “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”.

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 has paid no attention to the consultation responses.

4. The published NI Regulations make it impossible for individuals with strongly held religious beliefs to continue to provide a number of important goods and services.

The Government has not listened to the arguments made by many organisations that the provisions of goods and services by voluntary faith organisations should not be subjected to the Regulations. Equally there are no protections in the NI SORs guaranteeing teachers in faith schools the right to teach the importance of marriage and that all sexual relationships other than in marriage should be avoided. An aggrieved gay student could easily use the harassment provisions to sue their faith school by arguing that such teaching put them in a ‘hostile’ or ‘insulting’ environment. And yet many parents in faith schools would want teachers to be free to articulate such principles about sexual chastity.

Finally, we invite you to agree that the principles of the NI Regulations have such serious implications for a community with such strong religious views as those held in Northern Ireland, that Westminster should not use direct rule powers to push through this law without consulting the democratically elected representatives of the Northern Ireland assembly. As such, the Government should agree not to lay the NI Regulations before Parliament until the Northern Ireland Assembly has been reconvened and had the opportunity to consider the implications of the SORs. As a matter of principle the NI Regulations must not be published in advance of the E,W&S Regulations.

Yours sincerely,
Andrea Minichiello Williams
Public Policy Officer

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