In its recent Report on its future working practices the Committee indicated it would undertake more work in future on pre-legislative scrutiny and post-legislative scrutiny, the latter including the implementation of primary legislation through regulations. This is the Committee's first post-legislative scrutiny Report this Session (paragraph 1).
The Government intends to use its power in Part 3 of the Equality Act 2006 to make Regulations prohibiting discrimination on the grounds of sexual orientation in the provision of goods, facilities and services, in education and in the exercise of public functions. Its Consultation Paper received over 3,000 responses but the Government has still not published its analysis and summary. In the meantime the Northern Ireland Regulations have raised difficult questions about the human rights implications of prohibiting sexual orientation discrimination, particularly in the context of faith-based organisations delivering social and other public services. The purpose of this Report is for the Committee to draw the attention of Parliament to its views on the human rights issues likely to be raised by the sexual orientation Regulations for Great Britain (paragraphs 2-5).
In its Consultation Paper, the Government notes that there is clear evidence that lesbian, gay and bisexual people still face unacceptable discrimination and that its broad intention is to provide protection from sexual orientation discrimination in line with the approach taken in other anti-discrimination legislation. The new Regulations would come into effect at the same time as provisions prohibiting discrimination on grounds of religion or belief. In the Committee's view the Consultation Paper and the Northern Ireland Sexual Orientation Regulations raise a number of significant human rights issues (paragraphs 6-20).
The Committee welcomes the premise of the Consultation Paper and the Northern Ireland Regulations that there is now a firmly established principle that it is not acceptable for someone to be discriminated against because of their sexual orientation. The Committee therefore welcomes the Government's proposal to introduce regulations prohibiting discrimination on grounds of sexual orientation as a significant human rights-enhancing measure (paragraphs 21-30).
The Consultation Paper recognised that the new Regulations might have an impact on religious activity or practice. But any exceptions for religious organisations would have to be clearly defined and the Consultation Paper saw no case for exempting social or welfare services provided by religious organisations. Under Article 9 (1) of the ECHR the right to freedom of thought, conscience and religion is absolute and cannot be restricted, while the right to manifest one's religion or belief in practice is qualified and capable of limitation under Article 9 (2) including for the protection of the rights of others. The Northern Ireland Regulations contain an exemption for "organisations relating to religion or belief". In the Committee's view some exemption is necessary to protect the right to freedom of conscience, religion and belief. The Committee considers the scope of the exemption in Regulation 16 of the Northern Ireland Regulations to be compatible with human rights but recommends that no wider exemption should be contained in the Regulations for Great Britain when they are introduced (paragraphs 31-46).
The Committee welcomes the Prime Minister's statement indicating that the exemption sought by religious organisations when performing public functions will not be granted and looks forward to the Regulations for Great Britain containing the same provision as in the Northern Ireland Regulations that no exemption applies where a religious organisation is performing a public function on behalf of a public authority (paragraphs 47-53).
The Committee welcomes the inclusion of harassment as a separate instance of unlawful discrimination within the Northern Ireland Regulations and recommends that it should also be included in the forthcoming Regulations for Great Britain. The Committee is nevertheless concerned that the harassment provision in the Northern Ireland Regulations is drawn too widely and defined too vaguely and recommends that the new Regulations for Great Britain should contain a more precise and narrower definition of harassment (paragraphs 54-59).
The Committee welcomes the Government's acceptance that the prohibition of discrimination on the grounds of sexual orientation should apply to all schools in the maintained and independent sectors, without any exemption for particular types of school such as faith schools. The Committee does not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the sexual orientation Regulations. The Committee recommends that the Regulations for Great Britain should make clear that the prohibition on discrimination would apply to the curriculum and thereby avoid the considerable uncertainty to which the Northern Ireland Regulations have given rise on this question. The Committee further recommends that the Government clarifies its understanding of the Northern Ireland Regulations on this matter (paragraphs 60-67).