Joint Committee On Human Rights Sixth Report

4  Harassment

54. In its Consultation Paper the Government did not propose, at that stage, to make harassment on the grounds of sexual orientation unlawful in relation to goods, facilities, services, premises and public functions.[43] The reason given for this was that extending protection from harassment beyond the employment sphere raises complex arguments, and the question of how harassment should be applied across all the different equality strands was being considered as part of the Discrimination Law Review.[44]

55. The Northern Ireland Regulations, however, do cover harassment on grounds of sexual orientation. They provide that a person, A, subjects another person, B, to harassment "where, on the ground of sexual orientation, A engages in unwanted conduct which has the purpose or effect of (a) violating B's dignity, or (b) creating an intimidating, hostile, degrading or offensive environment for B".[45] Conduct shall be regarded as having such an effect only if, having regard to all the circumstances, including, in particular the perception of B, it should reasonably be considered as having that effect.[46]

56. During the passage of the Equality Act, the House of Lords removed harassment on grounds of religion or belief from the Bill. Lord Lester, who moved the relevant amendment to the Bill, explained that one of the main reasons for deleting harassment from that Bill was concern for the impact on freedom of speech in respect of comments made about the beliefs of others. In our view, however, different considerations apply in relation to sexual orientation, race and sex, because these are inherent characteristics. We therefore welcome the inclusion of harassment as a separate instance of unlawful discrimination within the Northern Ireland Regulations and we recommend that it also be included in the forthcoming Regulations for the rest of Great Britain.

57. Nevertheless, we are concerned that the harassment provision in the Northern Ireland Regulations is drawn too widely and defined too vaguely. Conduct which has the purpose or effect of "violating dignity" or[47] creating an "offensive environment" is potentially a very wide category of conduct given the inherent vagueness of the terms "dignity" and "offensive". What constitutes a violation of dignity or an offensive environment will inevitably involve a degree of subjectivity. This is mitigated to some extent by the express requirement that conduct shall be regarded as having these effects only if it should reasonably be considered as doing so,[48] but even then one of the relevant circumstances to which regard must be had "in particular", is the perception of the person being harassed.

58. The width and vagueness of the definition of harassment in the Northern Ireland Regulations gives rise to a risk of incompatibility with both freedom of speech in Article 10 ECHR and freedom of thought, conscience and religion in Article 9. The potential interference with freedom of speech arises because people may feel inhibited from saying something if they fear that a person may perceive it as a violation of their dignity or as creating an offensive environment. The potential interference with freedom of religion and belief arises because explanations of sincerely held doctrinal beliefs might be perceived as violating a person's dignity or creating an offensive environment. The exemption for religious organisation in Regulation 16 of the Northern Ireland Regulations does not provide an exemption for harassment so a person who invokes the exemption in that regulation risks being caught by the harassment provision if they explain their reasons for acting. As was explained in the debates on the Northern Ireland Regulations, where a person carrying out an exempt activity seeks to explain why a person has been excluded from that activity, there is a risk that the person being told will regard the explanation as violating their dignity or as offensive, and therefore claim that they have been harassed.

59. We recommend that the new Regulations for Great Britain contain a more precise and narrower definition of harassment, to reduce the risk of incompatibility with the right to freedom of speech and freedom of religion and belief.

43   CP para. 4.18. Back

44   CP para. 4.17. Back

45   Reg. 3(3). Back

46   Reg 3(4). Back

47   The EU Framework Directive by contrast uses the word "and", not "or" (EU Framework Directive on Equal Treatment in Employment and Occupation, 2000/78 EC). Back

48   Reg. 3(4). Back

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