Memorandum submitted by Barry Fitzpatrick
INTRODUCTION
I am making this submission in a personal capacity.
I was the first Convenor of the Coalition on Sexual Orientation
(CoSO) from 1999-2001 and have been a member of the Management
Committee of CoSO at various times until April this year.
In those capacities I have been involved in
preparing CoSO's submissions to both the Northern Ireland Human
Rights Commission in 2001[104]
and the Bill of Rights Forum in 2007[105]
on a Bill of Rights for Northern Ireland.
I would like to bring two matters to your attention.
First between these two submissions, the Yogyakarta Principles
were published, initially in Geneva in May 2007 and the European
Court of Human Rights fully recognised sexual orientation as a
ground for discrimination in Article 14 of the Convention.
Secondly, the harassment provisions of the Equality Act (Sexual
Orientation) Regulations (NI) 2006 were struck down in judicial
review proceedings.
2. INTERNATIONAL
HUMAN RIGHTS
STANDARDS
2.1 The Yogyakarta Principles
In CoSO 2007 submission, it is stated:
"1.2 Human Rights for LGBT People
We feel empowered by the adoption, in Geneva
in March 2007, of the Yogyakarta Principles (www.yogyakartaprinciples.org),
the product of a panel of esteemed human rights experts headed
by Professor Michael O'Flaherty, Nottingham University. These
are principles on the application of international human rights
law in relation to sexual orientation and gender identity and
form a template for the protection of LGBT rights, on a par with
UN Conventions for Elimination of Racial Discrimination, for the
Elimination of Discrimination Against Women, on the Rights of
the Child and the Rights of Disabled People. The principles also
encapsulate the most recent thinking on human rights protection
and hence are a valuable template for the development of a Bill
of Rights more generally."
CoSO therefore used the Principles as the basis
upon which it updated its original position on the Bill of Rights.
It stressed throughout its Position Paper the importance of auditing
human rights standards and domestic law on the basis of the principles.
In section 1.2 of the Position Paper goes
to quote from the Preamble of the Principles:
"We consider that the bedrock of the Bill
of Rights lies in respect for human dignity. In this context,
it is worth repeating the two opening recitals of the Preamble
to the Yogyakarta Principles:
"RECALLING that all human beings are
born free and equal in dignity and rights, and that everyone is
entitled to the enjoyment of human rights without distinction
of any kind, such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or
other status;
"DISTURBED that violence, harassment,
discrimination, exclusion, stigmatisation and prejudice are directed
against persons in all regions of the world because of their sexual
orientation or gender identity, that these experiences are compounded
by discrimination on grounds including gender, race, age, religion,
disability, health and economic status, and that such violence,
harassment, discrimination, exclusion, stigmatisation and
prejudice undermine the integrity and dignity of those subjected
to these abuses, may weaken their sense of self-worth and belonging
to their community, and lead many to conceal or suppress their
identity and to live lives of fear and invisibility;" (emphasis
added)
2.2 The judgment in Karner
The Position Paper proceeds to refer to the
judgment of the European Court of Human Rights in the Austrian
case of Karner, involving tenancy rights between a gay
couple in 2003. There the Court stated:
"…very weighty reasons have to be put
forward before the Court could regard a difference in treatment
based exclusively on the ground of sex as compatible with the
Convention … Just like differences based on sex,
differences based on sexual orientation require particularly serious
reasons by way of justification…". "… this
assertion of 'strict scrutiny' of measures which are discriminatory
on grounds of SO entrenches LGBT rights in the case law of the
Court, but also in European human rights more generally. The Bill
of Rights, in complementing the Convention, must give equal protection
to LGBT rights as enjoyed under the Convention.
CoSO therefore considers that its key demands
from the Bill of Rights are provisions on non-discrimination and
freedom from abuse for LGBT people, as integral elements of a
sense of human dignity allowing for the full participation of
LGBT people in NI society."
2.3 The lack of harassment provisions outside
employment and training
In section 4.4 of its Position Paper, CoSO
stated:
"CoSO welcomes the harassment clause. CoSO
restates its view that incitement to harassment should be included
in the Bill. It notes that, in relation to 'degrading treatment'
in Yogyakarta Principle 10.A, reference is made to 'the incitement
of such acts'. More generally, although issues of harassment have
been contentious, at least outside of the sphere of employment
and training, and have been the subject of judicial review in
NI in relation to the SO GFS Regulations, CoSO is of the view
that homophobic abuse is one of the most significant human rights
abuses perpetrated on LGBT people in NI. In its response to the
GB Discrimination Law Review, CoSO stated:
"An explicit definition makes a public
policy point that harassment in GFS, education etc is impermissible
and increases the likelihood of harassment policies being amended
to provide for SO harassment. Harassment is the most serious abuse
of human dignity and equality rights which LGBT people suffer … An
explicit definition also sets out clear demarcation lines as to
what is and what is not harassment rather than the difficult construction
of a harassment case out of the direct or indirect discrimination
provisions."
In that submission, in response to a question,
"Do you think there is a valid distinction to be made between
harassment in an 'open' and in a 'closed' environment and that
the approach to its prohibition should be differentiated accordingly?"
CoSO replied:
"CoSO considers harassment in schools, where
students are in a regimented environment, and in accommodation,
where a significant part of a person's life is spent, is much
more serious than being offended by a theatrical performance which
the person was at liberty to avoid."
Applying Karner to this failure to propose
legislation on harassment outside employment and training, the
Government has failed to provide "particularly serious reasons
by way of justification" why this should be the case.
In its paper, Framework for a Fairer Future—The
Equality Bill, the Government Equalities Office provides,
under a heading "Time to strengthen the law", examples
of inequalities in Great Britain including:
"Six out of 10 lesbian and gay schoolchildren
experience homophobic bullying and half of those contemplate killing
themselves as a result"
And yet, within a month, the GEO was claiming
that there was "no evidence" of a need to legislate
for harassment outside employment, particularly in the education
sector.[106]
I would submit that this is not "particularly
serious reasons by way of justification" not to legislate.
3. DEVISING A
SUITABLE HARASSMENT
PROVISION
In its judgment in the Christian Institute
judicial review[107]
of the harassment provisions of the Equality Act (Sexual Orientation)
Regulations (NI) 2006, the Northern Ireland High Court quoted
from paragraphs 57 and 58 of your Committee's report
on the draft Regulations, on the imprecision and breadth of the
proposed provisions.
At paragraph 41 of the judgment, the High
Court concludes:
"The Joint Committee recommended that the
new regulations for Great Britain contain a more precise and narrower
definition of harassment so as to reduce the risk of incompatibility
with the right to freedom of speech and freedom of religion and
belief."
I would submit that it is possible to devise
a harassment provision which satisfies the requirements of the
Yogyakarta Principles and the European Convention on Human Rights
on "equality of treatment" between non-discrimination
grounds and the need to respect freedom of speech and religion.
The present definition covers "creating an intimidating,
hostile, degrading, humiliating or offensive environment".
Some of these adjectives, particularly "offensive",
may be too wide. The definition could start with a "degrading
environment" and work its way out to an acceptable point.
Secondly, the definition could vary depending
on the environment. It applies in employment because it is a "closed
environment" in which individuals spend a significant portion
of their time, under the "control" or "supervision"
of those who control the environment. Other such environments
are in education, healthcare and housing, as opposed to "one-off"
situations, such as dramatic performances, so called "comedians"
etc, at least unless sufficiently serious abuse has occurred.
Thirdly, some exceptions can be devised to deal
with religious beliefs/values but these should be modelled on
the revised "organised religion" provisions now proposed
for employment and training. It should not however be possible
to use an "ethos" provision to justify an "intimidating",
"degrading" or "humiliating" environment in
schools and care homes where the human dignity of highly vulnerable
LGBT children and young people, and patients and older people,
must be protected.
104 CoSO Response to the Draft Bill of Rights, 2001. Back
105
CoSO Position Paper for the Bill of Rights Forum, October 2007. Back
106
The July paper states, at para 25:
"But we do not propose to extend protection against harassment
outside work, on grounds of sexual orientation or religion or
belief, because we do not see evidence of a real problem." Back
107
[2007] NIQB 66, judgment delivered 11/09/2007. Back
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