Joint Committee On Human Rights Sixth Report

1  Introduction


1. In our recent Report on our future working practices, we indicated that we intended to undertake more work in future on pre-legislative scrutiny, such as examining the human rights implications of consultation papers, and on post-legislative scrutiny, including the implementation of primary legislation through regulations.[1]

2. Part 3 of the Equality Act 2006 gives the Secretary of State the power to make provision by regulations about discrimination or harassment on grounds of sexual orientation.[2] The power to make such provision was introduced into the Equality Bill during its passage through Parliament to match the provision made in Part 2 making it unlawful to discriminate on the grounds of religion or belief in the provision of goods, facilities and services. The Government intends to use this power in Part 3 of the Equality Act 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. It consulted between March and June 2006 on the basis of its Getting Equal Consultation Paper,[3] with a view to making regulations that would take effect in October 2006. The Consultation Paper explained that the regulations are intended to bring protection from sexual orientation discrimination into line with existing legislation that prohibits discrimination on the grounds of race, sex, and for reasons related to a disability. The consultation sought views about the range of activities that should be covered by the regulations and on whether any exceptions should be provided from them to ensure that the protection provided is effective and appropriately targeted.

3. The Government received over 3,000 responses to its Consultation Paper and subsequently announced that in light of the number of responses it was putting back the timetable for introducing regulations. In December 2006 the Secretary of State for Communities and Local Government indicated that the Government would shortly be publishing its response to the consultation on its proposals to prohibit sexual orientation discrimination in the provision of goods and services in Great Britain with a view to laying and implementing draft regulations in April 2007.[4] At the time of drafting this Report, the Government had still not published its analysis and summary of the responses to its consultation.

4. In the meantime the introduction of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (henceforth the "Northern Ireland Regulations"), and parliamentary debate on them, has helped to identify the significant human rights issues which are raised by the drafting of such regulations concerning discrimination and harassment on grounds of sexual orientation. The debates have revealed some interesting questions about the human rights implications of prohibiting sexual orientation discrimination and harassment, particularly in the context of faith-based organisations delivering social and other public services.

5. At the time of the Equality Act's passage through Parliament, we welcomed the inclusion of the provision in Part 3 as an important step in advancing protection against discrimination on grounds of sexuality.[5] In view of the importance of the subject matter of the regulations, we subsequently decided to scrutinise the Consultation Paper preceding the regulations as an exercise in both pre- and post-legislative scrutiny. The purpose of this Report is to provide Parliament with our views on the human rights issues which are likely to be raised by the sexual orientation regulations in order to inform parliamentary debate on the draft regulations when they are laid. The regulations must be approved by each House.

The Consultation Paper

6. The Consultation Paper states that the Government's broad intention is to extend Great Britain's current anti-discrimination laws to cover people facing unfair treatment because of their sexual orientation. It describes the sorts of discriminatory behaviour that the Government is proposing to make unlawful and gives examples of the sort of situations where some organisations or individuals might currently operate or act in ways that would be unlawful once the regulations take effect.

7. In its Consultation Paper, the Government notes that there is clear evidence that lesbian, gay and bisexual people still face unacceptable discrimination in their everyday lives, including direct discrimination such as refusal of services or access to basic healthcare on grounds of their sexuality, and in addition are often subjected to hostility and abuse.

8. The Government states that broadly speaking its aim is to provide protection from sexual orientation discrimination which generally accords with the approach taken in the Sex Discrimination Act, the Race Relations Act and the religion and belief provisions in Part 2 of the Equality Act 2006 in respect of goods, facilities and services, public functions, education and premises. It also identifies areas where it says it will be necessary to consider whether or not there are good reasons to consider excluding certain activities from the scope of the regulations.

9. The Government intends to bring the new regulations into effect at the same time, in April 2007, as the provisions in Part 2 of the Equality Act prohibiting discrimination on grounds of religion or belief.

The Northern Ireland Regulations

10. Part 3 of the Equality Act 2006 also gives the Office of the First Minister and deputy First Minister in Northern Ireland the power to make provision about discrimination or harassment on grounds of sexual orientation.[6]

11. The Office of the First Minister and deputy First Minister issued a Consultation Paper in July 2006.[7] The consultation closed on 25 September 2006. The Government published its analysis of the consultation responses in late November 2006, after making the Regulations. 373 responses were received. A significant majority of the responses addressed only the consultation questions concerning exemptions for religion and religious organisations. The Government believe that the concerns of many of those who responded have been met by the inclusion of a religious exemption in the Regulations.

12. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 were made on 8 November 2006, laid before Parliament on 24 November and came into operation on 1 January 2007. Although subject to the affirmative resolution procedure of the Northern Ireland Assembly, during the Assembly's suspension they are laid before Parliament and subject to negative resolution.[8] The Northern Ireland Transitional Assembly debated the regulations on 11 December 2006 and divided 39-39 on a motion to withdraw them.[9] The motion was therefore not carried.

13. The House of Lords Merits of Statutory Instruments Committee drew special attention to the Regulations on the ground that they give rise to issues of public policy likely to be of interest to the House.[10] A motion to annul was defeated in the Lords on 9 January 2007,[11] and the Regulations were debated and voted on in a Commons Delegated Legislation Committee on 17 January 2007[12] following a prayer being tabled against them. The Joint Committee on Statutory Instruments considered the Regulations at its meeting on 24 January 2007 and decided to report the statutory instrument to both Houses for defective drafting but not on the ground that there was doubt about its vires.[13]

14. The purpose of the Regulations is to prohibit discrimination on the grounds of sexual orientation in the provision of goods, facilities, services, education, functions of public authorities and the disposal of property. The Regulations protect people from four types of discrimination on grounds of sexual orientation:

  • direct discrimination, i.e. where a person treats another person less favourably because of his sexual orientation;[14]
  • indirect discrimination, e.g. where a person applies to another person a requirement or condition which he would apply equally to everyone, but it disproportionately affects people of the same sexual orientation and cannot be shown to be justifiable;[15]
  • harassment, i.e. where, on the ground of sexual orientation, a person engages in unwanted conduct towards another person which has the purpose or effect of violating that other person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them;[16] and
  • victimisation, where a person treats another person less favourably because they have, e.g., brought proceedings under these Regulations.[17]

15. The Regulations go on to provide that it is unlawful to discriminate on grounds of sexual orientation, or to subject a person to harassment on those grounds, in the provision of goods, facilities or services;[18] in the disposal or management of premises;[19] in the provision of education;[20] and in the course of a public authority carrying out any of its functions of providing any form of social security, healthcare, any other form of social protection, or any form of social advantage.[21]

16. The Regulations contain certain exemptions from some of the prohibitions, eg.

  • a small dwellings exemption from the prohibition on discrimination in the provision of goods and services;[22]
  • an exemption from the same prohibition for anything done by a person as a participant in arrangements under which he (for reward or not) takes into his home, and treats as if they were members of his family, children, elderly persons, or persons requiring a special degree of care and attention;[23]
  • an exemption for organisations relating to religion or belief.[24]

17. The exemption for religious organisations is the Government's response to the large number of responses to its consultation which raised this issue. It permits such organisations to:

  • restrict membership of the organisation
  • restrict participation in activities undertaken by the organisation
  • restrict the provision of goods, facilities and services in the course of activities undertaken by the organisation; or
  • restrict the use or disposal of premises owned and controlled by the organisation,

but only if one of two conditions is satisfied: either it is necessary to comply with the doctrine of the organisation, or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers.[25] The exemption does not apply to an organisation whose sole or main purpose is commercial, to bodies concerned with education, or to organisations providing goods, facilities or services, or performing certain functions, on behalf of a public authority under the terms of a contract for provision of that kind.

18. Because the Northern Ireland Regulations are subject to negative procedure and do not amend primary legislation, there is no accompanying statement of ECHR compatibility containing the Government' reasons for concluding that the Regulations are compatible with Convention rights. There is, however, a Departmental Memorandum from the Office of the First Minister and Deputy First Minister to the Joint Committee on Statutory Instruments[26] which sets out the reasons why the Department considers that the Regulations are compatible with the Convention rights and do not discriminate against a person or class of person on the ground of religious belief or political opinion.[27]

The human rights issues

19. In our view the Consultation Paper Getting Equal and the Northern Ireland Sexual Orientation Regulations raise a number of significant human rights issues.

20. We report our views on those issues here in the hope that this might help to inform parliamentary debate on the GB regulations when they are introduced.

1   Twenty-third Report of Session 2005-06, The Committee's Future Working Practices, HL Paper 239, HC 1575, at paras 55-57 and 77. Back

2   Section 81 Equality Act 2006. Back

3   Getting Equal: Proposals to Outlaw Sexual Orientation Discrimination in the Provision of Goods and Services, Consultation Paper issued by the Women and Equality Unit in the Department of Trade and Industry, 13 March 2006 (hereafter "CP"). Back

4   Uncorrected transcript of evidence of Rt Hon Ruth Kelly MP, Secretary of State for Communities and Local Government, to the Communities and Local Government Committee, 4 December 2006, Q187. Back

5   Fourth Report of 2005-06, Legislative Scrutiny: Equality Bill, HL Paper 89, HC 766, at paras 28 and 53. Back

6   Section 82 Equality Act 2006. Back

7   Getting Equal: Proposals to outlaw discrimination on the ground of sexual orientation in the provision of goods and services in Northern Ireland. Back

8   Under para. 7(3) of the Schedule to the Northern Ireland Act 2000. Back

9 Back

10   Third Report of 2006-07, HL 11. Back

11   HL Deb 9 January 2007 cols 179-213. Back

12   Stg Co Deb, Second Delegated Legislation Committee, 17 January 2007. Back

13   Joint Committee on Statutory Instruments, Sixth Report of 2006-07, HL Paper 37, HC 82-vi. Back

14   Reg 3(1)(a). Back

15   Reg 3(1)(b) and ( c). Back

16   Reg 3(3). Back

17   Reg 4(1). Back

18   Reg. 5. Reg 5(3) gives examples of the sorts of facilities and services mentioned in Reg 5(1), including accommodation in a hotel or B & B, facilities by way of insurance, and facilities for education. Back

19   Reg 6. Back

20   Regs 9-11. Back

21   Reg 12. Back

22   Reg 7. Back

23   Reg 8(2). Back

24   Reg 16. Back

25   Reg 16(5). Back

26   Appendix to Joint Committee on Statutory Instruments Sixth Report of 2006-07, op. citBack

27   As required by s. 24 of the Northern Ireland Act 1998. Back

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Prepared 28 February 2007