Joint Committee On Human Rights Sixth Report


Conclusions and Recommendations


The right of non-discrimination on grounds of sexual orientation

1. We welcome the premise of both the Government's 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. We agree that people suffering unfair treatment on grounds of their sexual orientation is unacceptable in a society which purports to be founded on equal opportunities for all, respect for the equal dignity and worth of each person and mutual respect between communities. (para 29)

2. We regard the right not to be discriminated against on grounds of sexual orientation as a fundamental human right, and we note the recognition in international human rights law that sexual orientation has now joined race and sex as being a ground for different treatment which requires particularly weighty justification. We also consider that the Government has an obligation to protect individuals from such treatment, whether from a public or a private source, and to provide them with the means to challenge it. We therefore welcome the Government's proposal to introduce regulations prohibiting discrimination on grounds of sexual orientation as a significant human rights enhancing measure, giving more effective protection in our national law for rights of non-discrimination which already exist under the Human Rights Act and are already binding on the UK internationally. (para 30)

Freedom of thought, conscience and religion

3. 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. (para 44)

4. 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. (para 46)

Applicability to public functions

5. 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. (para 49)

6. 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. (para 52)

Harassment

7. In our view, different freedom of speech considerations apply in relation to sexual orientation, race and sex than to comments made about the beliefs of others, because the former 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. (para 56)

8. 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 creating an "offensive environment" is potentially a very wide category of conduct given the inherent vagueness of the terms "dignity" and "offensive". (para 57)

9. 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. (para 59)

Education

10. We welcome the Government's acceptance that the prohibition of discrimination on grounds of sexual orientation should apply to all schools in both the maintained and the independent sectors, without any exemption for particular types of school such as faith schools. In our view, it follows from the fact that protection against sexual orientation discrimination is rooted in recognition of the equal dignity of every individual that there should be no exemptions for faith schools. Such an exemption would be likely to lead in practice to breaches of pupils' rights not to be discriminated against on the basis of their sexual orientation, contrary to Article 14 in conjunction with Article 8 and Article 2 of Protocol 1. (para 65)

11. We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. Applying the Regulations to the curriculum would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion's doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils. We recommend that the Regulations for Great Britain make clear that the prohibition on discrimination applies to the curriculum and thereby avoid the considerable uncertainty to which the Northern Ireland Regulations have given rise on this question. We further recommend that the Government clarifies its understanding of the Northern Ireland Regulations on this matter. (para 67)


 
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