The scope of the exemption to
respect freedom of conscience and religion
40. In the Government's view, the concerns expressed
about exemptions for religion in response to its consultation
on the Northern Ireland Regulations have been addressed by the
wording of this exemption which, it says, clearly protects the
right to hold a religious belief and key doctrinal practices.[36]
41. In the debates on the Northern Ireland Regulations,
opponents of the Regulations argued that the exemption for religious
organisations is too narrow and that the Regulations interfere
with religious freedom, because they require people to approve
of or facilitate practices which their faith teaches them, or
their conscience tells them, are contrary to the central tenets
of their religion, or morally wrong.[37]
According to this view, the Regulations threaten to override the
consciences of Christians and others who object to homosexual
practice. A frequently cited example was that of a Christian proprietor
of a bed and breakfast establishment, who would be forced, by
the Regulations to rent out a double room to a homosexual couple,
an act of facilitation of homosexual practice which would be "against
his conscience".
42. Others in the debate argued that the Regulations
do not require anyone to approve of anything, they merely require
the holders of religious beliefs about homosexuality to refrain
from putting them into action in ways that have an adverse impact
on other people.[38]
43. In our view, the human rights issue at the heart
of this disagreement has a relatively straightforward answer.
The question is whether the prohibitions on discrimination in
the Regulations interfere with freedom of conscience and religion
per se, in which case they are incompatible with Article 9(1)
ECHR because that freedom is absolute, or with the manifestation
of such conscience and religion, in which case they are capable
of limitation if they can be shown to be justified as being necessary
to protect the rights of others not to be discriminated against.
44. In our view, some exemption from the Regulations
is necessary in order to protect the right to freedom of conscience,
religion and belief in Article 9 ECHR. Regulation 16 of the Northern
Ireland Regulations ensures that nobody will be required to perform
same-sex marriages, or to admit homosexual people to their religious
organisations, or allow them to join in their activities or use
their premises if this would be contrary to their religious belief.
In our view, the scope of the exemption in Regulation 16 gives
adequate protection to the absolute right in Article 9(1) to freedom
of conscience and religion. Nobody is required by the Regulations
not to have beliefs about the morality of different sexual orientations,
or its compatibility with the tenets of one's religion, or punished
or subjected to any other disadvantage for having such beliefs.
In our view, the prohibitions on discrimination in the Regulations
limit the manifestation of those religious beliefs and that limitation
is justifiable in a democratic society for the protection of the
right of gay people not to be discriminated against in the provision
of goods, facilities and services.
45. It also follows from the above that there would
be a compatibility problem if the Regulations provided for a wider
exemption which expressly exempted religious bodies from the obligation
not to discriminate on grounds of sexual orientation. This would
be likely to be in breach of Article 14 in conjunction with Article
8. Exemptions from the prohibition must have a reasonable and
objective justification in order to be compatible with Article
14. An exemption to protect the absolute right of freedom of conscience
and religion (as in Reg 16) would therefore be likely to be justifiable,
but not an exemption to protect the right to manifest one's conscience
or religious belief, which, as we have sought to explain above,
is capable of justified limitation and in our view can be justifiably
limited in order to protect gay people from discrimination.
46. We consider the scope of the exemption in
Regulation 16 of the Northern Ireland Regulations to be compatible
with human rights, but an exemption which went wider and protected
manifestations of belief would be likely to be in breach of Article
14 in conjunction with Article 8 ECHR. We recommend that no wider
exemption than that contained in Regulation 16 be contained in
the GB Regulations when they are introduced.
Applicability to public functions
47. The Consultation Paper proposed to include the
exercise of public functions in the new sexual orientation regulations,
so that the new provisions will apply to the activities carried
out by public bodies in addition to their provision of goods,
facilities and services.[39]
The proposal is that the new prohibition will apply to anyone
exercising a public function, including where the function is
being undertaken by a private or voluntary body on a public authority's
behalf.[40]
48. The Northern Ireland Regulations make it unlawful
for a public authority to discriminate on grounds of sexual orientation,
or subject a person to harassment, in the course of carrying out
any functions of the authority consisting of the provision of
any form of social security, healthcare, any other form of social
protection or advantage.[41]
Public authority is given the Human Rights Act meaning, so as
to include any person certain of whose functions are functions
of a public nature.
49. We welcome the application of the new sexual
orientation regulations to public functions as well as to goods,
facilities and services. We recommend that the same approach is
both necessary and should be taken in relation to the new Great
Britain regulations.
50. The Consultation Paper also asked whether any
specific additional exceptions might be needed from a prohibition
on sexual orientation discrimination in the exercise of public
functions.[42] The Northern
Ireland Regulations do not contain any such additional exceptions.
Regulation 16(8) of those Regulations expressly provides that
the exemption for religious organisations does not apply where
the organisation is providing goods facilities or services, or
carrying out various functions of the authority on behalf of that
authority pursuant to a contract. This means that where, for example,
a Christian charity is running a residential care home for older
people, the prohibitions against discrimination on grounds of
sexual orientation apply.
51. During the course of the public debate about
the Northern Ireland Regulations this feature caused much controversy.
Some objected to Christian older people's homes being compelled
by the Regulations to provide a double bed for civil partners.
Religious organisations threatened to withdraw the services they
provided for the State unless an exemption from the Regulations
was provided for them. Following the passage of the Northern Ireland
Regulations and in respect of the Great Britain Regulations the
focus of the argument became Catholic adoption agencies, which,
in the absence of an exemption wider than that in Regulation 16,
would be required by the Regulation to offer their services to
gay couples.
52. In our view there is nothing in Article 9
ECHR, or any other human rights standard, that requires an exemption
to be provided to permit religious organisations to discriminate
on grounds of sexual orientation when delivering services on behalf
of a public authority. Such an exemption would provide a protection
not for the holding of a religious belief but for the manifestation
of that belief. Where such manifestation of a belief conflicts
with the right of gay people not to be discriminated against in
their access to services as important as adoption services, it
is in our view necessary and justifiable to limit the right to
manifest the belief.
53. We therefore welcome the Prime Minister's statement
indicating that the exemption sought by religious organisations
when performing public functions will not be granted and we look
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.
34 CP paras 3.32-3.36. Back
35
Regulation 16. Back
36
Departmental Memorandum to JCSI, op. cit. Back
37
See e.g. Lord Morrow, moving the prayer that the Regulations be
annulled in the House of Lords, HL Deb 9 January 2007, col. 183;
David Simpson MP, moving the motion that the Committee has considered
the Regulations in the House of Commons Delegated Legislation
Committee, St Co Deb Second Delegated Legislation Committee 17
January 2007, col. 3. Back
38
See e.g. Lord Smith, HL Deb 9 Jan 2007 col. 184; Dr Evan Harris
MP, St Co Deb op. cit., col. 3. Back
39
CP para. 3.21. Back
40
CP para. 3.22. Back
41
Reg 12(1). Back
42
CP Q8. Back
