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
http://www.niassembly.gov.uk/transitional/plenary/061211.htm. 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. cit. Back
27
As required by s. 24 of the Northern Ireland Act 1998. Back
