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In short, in our view, the expression,
not only unnecessarily undermines the objectives set out in Clause 1, but is otiose because Clause 3(2)(b) meets all the requirements that the Government could possibly want from the clause. I beg to move.
Lord Maclennan of Rogart: We on these Benches agree with the argument put forward by the noble Lord, Lord Kingsland. In our judgment, it is a mistake to give an escape clause of this kind which undermines the force of the objectives set out in Clause 1. I hope that the Minister will be persuaded by the argument that she has already heard.
Lord Hunt of Wirral: I suppose that in this amendment we seek not to lose the ground that we
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However, we do not want the words,
to restrict in some way the victory that we have achieved in persuading the Government to include that regulatory objective. We are really asking the Minister to explain why she thinks that the words,
Baroness Ashton of Upholland: I should be delighted to do that. The noble Lord, Lord Kingsland, and I had a brief conversation about this earlier and I have received legal advice. He reasonably pointed out how Clause 3(2)(b) is drafted and said that, by removing the phrase, I would not be creating the problem I feared. I was fearful that the amendment would place an obligation on the board and on regulators to act in a way that was compatible with all of the regulatory objectives all of the time. That is obviously contrary to the principles proposed by Sir David Clementi which we discussed in part earlier this evening regarding the ability of regulators to judge for themselves how to balance one objective against another on a case-by-case basis.
In the Bill there may be tensions between some of the objectives in some circumstances. A case may arise in future where the objective to improve access to justice is more important, as we discussed on the competition issue, than the objective to promote competition. In such a situation it would be difficult for the Legal Services Board to comply fully with both regulatory objectives. The noble Lord, Lord Kingsland, will agree that in our earlier discussion, when we considered the matter, he thought that Clause 3(2)(b) addressed the issue and that we did not need to look at it again. However, I have now taken advice from lawyers in the department. I shall not read out the advice in detail but will send it to Members of the Committee who have spoken in the debate so that they can look at it properly.
We do not think that the effect that the noble Lord seeks will be achieved. The problem that I have outlined would be created because of the way in which the Bill is drafted. The result would be that the LSB would have to act in a way that is compatible with the regulatory objectives and that the board considers most appropriate for the purpose of meeting those objectives. “So far as is reasonably practicable” qualifies both of those. They require different things that would be differently affected by no longer being qualified by “so far as is reasonably practicable”.
I shall stop there. However, that is the difficulty. The phrase is qualifying both, but in different ways. We shall discuss the point between now and Report to ensure that I have made that as clear as possible. I understand what the noble Lord seeks to do, but we need the provision in the clause in order to prevent the effect that the noble Lord’s amendment would accidentally achieve.
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7.30 pm
Lord Kingsland: I am most grateful for the Minister’s response. I accept that there may be difficulties with my crafting of the amendment; but if the government lawyers say that it does not achieve the result I want, that still leaves us with the problem. The expression “so far as is reasonably practicable” leaves it open to the Legal Services Board to effectively ignore one or other of the objectives in making its decision. That would not be acceptable. So if our amendment does not achieve the objective we wish, we must find some other way of doing so.
Nor is it in the Government’s interest that the Legal Services Board should effectively be able to make a decision by ignoring one of the objectives it is obliged to take into account under the Bill. We must find a solution to that problem. If the amendment does not do so, I hope the Government will go back to their lawyers and find some other way of doing so which does not involve a clause entitling the Legal Services Board to ignore one of its objectives.
Baroness Ashton of Upholland: That is the difference. We do not think we have entitled the board to ignore them. We have already said that there will be times when the weighting of different objectives and considerations is essential. For example, some objectives may not be engaged at all. We will look at this again. We do not believe that there is a problem as the noble Lord maintains but we need to convince him of that. We agree with what he is trying to achieve but we think that it is already there.
Lord Kingsland: I am less persuaded than usual by the Minister. However, she knows that I am not going to press the matter to a vote this evening. I look forward to seeing what she does on Report. In the mean time, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Evans of Temple Guiting: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
Business
Lord Evans of Temple Guiting: My Lords, first, we shall not be returning to the Legal Services Bill tonight. Secondly, there is an error on the Order Paper, limiting the dinner break business to one hour. There is no time limit on the forthcoming debate.
Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006
7.33 pm
Lord Morrow rose to move that an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 November, be annulled.
The noble Lord said: My Lords, secondary legislation is supposed to be non-controversial, but these regulations could not be more controversial. It cannot be often that a set of regulations is accused of
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Noble Lords will know that the Merits Committee drew the special attention of the House to the regulations in its third report on 7 December. The committee made particular reference to the controversy. It pointed out that 290 of the 373 consultation responses that the Government received on the regulations expressed concern about the effect on religious liberty. The committee thinks that the House will be interested in,
- “the manner in which the Department have sought to allay the concerns which have been expressed by consultation respondents”.
The fact is that they have failed to allay those concerns, as I will show.
Noble Lords may have realised that we do not have the benefit today of a report from the Joint Committee on Statutory Instruments. That is not because the committee is unconcerned—quite the contrary. I understand that the committee has asked the Government a series of searching questions about the regulations and has drawn attention to typographical errors. They have even asked whether the regulations are ultra vires under Section 24 of the Northern Ireland Act 1998, which prohibits Ministers from any action that breaches freedom of religion. I asked the Government to delay today’s debate to allow the committee to complete its report, but my request was denied.
What do the regulations do? The sexual orientation regulations, which came into force on 1 January, cover the provision of goods, facilities and services, education, public authorities and the disposal of property. The regulations outlaw, first, discrimination and, secondly, harassment on the ground of sexual orientation. The scope of the regulations is vast, covering businesses and voluntary organisations. The phrase “goods, facilities and services” is very broad, covering many different activities. The regulations do not cover employment, which is dealt with in other legislation.
In most circumstances, the new laws will not be problematic. Homosexual people are entitled to be able to buy their groceries and have their bins emptied, just like everyone else—but the regulations go much further. They make it possible for homosexual activists to sue people who disagree with a homosexual lifestyle because of their religious beliefs. Bed and breakfast owners and Christian old people’s homes will be sued for not giving a double bed to homosexual civil partners. Wedding photographers will be made to pay compensation for not taking bookings for civil partnership ceremonies. Christians in business could even be sued for sharing their faith with customers. Worst of all, they require religious organisations to choose between obedience to God and obedience to the state.
The press is reporting that a first breach of the law could incur fines of between £500 and £5,000. Subsequent serious breaches could attract damages of up to £25,000. Regulation 3(3) sets out the new harassment law. The
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The Government’s Equality Bill proposed the creation of a harassment law in almost exactly the same terms as that, but on the ground of religion. In November 2005, this House voted to remove it from the Bill. It was considered too broad, too controversial and a threat to freedom of speech. The Government responded by asking the discrimination law review to look at it. That review has not yet reported. No solution has yet been put forward by the many experts involved in that review. Yet the Northern Ireland Office seems to think that it has the wisdom of Solomon and has slipped in the harassment provisions. It has done so despite indicating in its consultation paper that it was not minded to do so. I should say that the consultation itself was defective in that it did not give enough time for members of the public to respond and ignored most of the responses.
Furthermore, the Government claim that concerns about religious liberty are met by Regulation 16. It provides certain exemptions for religious organisations from a discrimination law. I underline this: what it does not do is protect religious organisations from the harassment law. That has major implications for religious liberty and freedom of speech. For example, if church membership were denied to a homosexual and the minister explained in orthodox, theological terms the religious belief that justified the denial, it would be open to the person to bring a claim for harassment. He could complain that the explanation had the effect of,
“Nothing in these Regulations shall make it unlawful for a minister to restrict participation in activities carried on in the performance of his functions”.
That exemption covers the refusal by the minister. It does not cover any subsequent explanations. If he quotes from the Bible, he could be in trouble. What could be more fundamental than the right to decide who is a member of your church? Yet that is jeopardised by the regulations.
As I mentioned, the regulations are subject to judicial review by several Christian groups. The Christian Institute and six denominations have successfully applied for permission for a judicial review that is to be heard in early March. They are represented by James Dingemans QC who argues that the regulations interfere with the manifestation of religious belief and bring about a situation where one set of rights trumps another.
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One might have hoped for some humility from Government in the face of these allegations, some willingness to reconsider. Instead, Ministers have been engaged in knocking down straw men. I have here a letter dated 13 December from Mr David Hanson, the Minister of State for Northern Ireland, which says that bed and breakfast places can still refuse to give a double bed to a homosexual couple so long as they also refuse double beds to unmarried heterosexual couples, but what about the issue of civil partnerships? The consultation paper repeatedly declared the Government’s intention to ensure that civil partners receive the same treatment as married couples. So, if a Christian bed and breakfast establishment refused a double room to a homosexual couple living in a civil partnership, they could be sued and so in effect closed down purely because of their religious beliefs.
The Minister also says that the harassment provisions will not stop a Christian bookshop promoting marriage. That is very good. But what he does not say is what happens when members of staff in a Christian bookshop share the Gospel with a homosexual customer. If they urge the customer to repent and turn to Christ—as in Northern Ireland they might often do—they could easily find themselves on the wrong end of a legal action for harassment. The bookshop would not want to discriminate in any way—it would happily sell the person, sell anyone, a book—but it can still be sued for harassment.
7.45 pm
Education will also be affected. The Minister says that the regulations apply only to access to benefits and not the curriculum. I believe that he is mistaken. There is absolutely nothing in the wording that excludes the curriculum from the scope of litigation.
In Northern Ireland, the Fair Employment and Treatment Order 1998 outlaws discrimination on the ground of religion in the provision of goods and services. It provides broad exceptions for schools which could cover the curriculum. This means that it will not be possible to litigate using these laws over any religious content in the school curriculum. However, the sexual orientation regulations do not exempt the curriculum. That creates an imbalance in legal rights. Discrimination law could be used to promote homosexuality but not to object to it. A pupil who identifies as homosexual can sue a teacher who says in an RE lesson that sex outside of marriage is wrong, but a religious pupil cannot sue if homosexuality is promoted in an English lesson.
There is another glaring hole in the exceptions for religious groups. Regulation 16(8) states that the exception does not apply where an organisation contracts with the state to provide a particular service. This means that religious bodies providing a service on behalf of the state must fully comply with the new laws. So a Christian old people’s home receiving state funding for some places which refused a double room to two civil partners would be unlawfully discriminating. The home is faced with a choice: defend legal actions or turn down state funding. Either way, the costs would mean that the home will close.
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In a recent letter to The Times dated 30 November 2006, Meg Munn MP claims that the sexual orientation regulations are necessary as,
If that indeed were the case, this sort of discrimination could be dealt with easily under current guidance by the General Medical Council without the need to have SORs implemented. Those who work in the NHS inform me that they are not aware of any incidents of lesbians or bisexuals being denied access to essential healthcare. Recently, the Equality Unit, DTI, was contacted but was unable to provide substantial evidence regarding this. There appears to be only very limited anecdotal evidence. I contend that the Government have failed to provide robust evidence to support the claim that homosexual individuals are denied access to essential healthcare. As that claim seems to be one of the main bases for introducing SORs, the burden of responsibility rests with the Minister to produce robust and convincing evidence that homosexual individuals are denied access to essential healthcare. It is most important that the Government ensure that the proposed SORs will not be abused by malicious claims as has happened in other countries. I give the example of Canada.
I am firmly convinced that the freedom to manifest one’s religion is seriously undermined. The regulations threaten to override the consciences and free speech of Christians and others who object to homosexual practice. This contravenes Articles 9 and 10 of the European Convention on Human Rights. However, the Government have achieved one thing: they have united Protestant, Catholic and Dissenter in opposition to these SORs. I am not aware of any—I underline the word “any”—church denomination, large or small, in Northern Ireland that supports the regulations. As a matter of fact, I confidently stand here tonight and tell noble Lords that there is none. Not a single denomination, small or large, in Northern Ireland supports these regulations. I beg to move.
Moved, That an humble Address be presented to Her Majesty praying that the regulations, laid before the House on 24 November, be annulled. 3rd Report from the Merits Committee.—(Lord Morrow.)
Lord Smith of Finsbury: My Lords, I support these regulations. I have to confess that I am somewhat puzzled by the arguments that have been advanced by the noble Lord and by many of the campaigners outside this House. It seems to me in my simplistic way that what they are arguing for is quite simply the right to discriminate and the right to harass. And those arguments are being made in name of Christianity? I find that very difficult to understand.
Much of the material that has been put before us in relation to these regulations speaks of a balance of rights. Yes, of course, the whole business of politics and government and the discussions in this House are about balancing rights. I believe very strongly that people have a right to believe that homosexuality is in some way wrong. I believe very strongly that people have a right to hold views that may be bigoted and
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This is not just about freedom of conscience. It is about freedom of action and where the limits to that freedom of action have to rest in order to ensure that other people in our society can be properly protected. These regulations are very simply putting non-discrimination into practice. If in much of the material that has been written about these matters we had simply substituted the word “black” for the word “homosexual”, I wonder whether we would be giving house room to some of these arguments.
I speak as someone who happens to be a gay man. I also happen to be a Christian. My Christianity is about being inclusive, not about being exclusive. It is about being accepting of others. It is about celebrating the differences between all the wonderful people that God created in this crazy world of ours.
There is an old story about a black man in the deep south of the United States who climbs up the steps of a church in order to go in and worship. He climbs up the steps on a very hot, sunny, summer afternoon. He gets to the door of the church and the burly man at the doors says, “I’m sorry. You can’t come in here. It’s not for the likes of you”. Very sorrowfully, the black man turns round and walks back down the steps. Halfway down, God speaks to him and says, “Why are you so sad?”. He says, “Well, Lord, I wanted to go into the church to worship you, and they won’t let me in”. “It’s all right”, says God, “I’ve been trying to get in there for years, and they won’t let me in either”. It seems to me that perhaps some of those who are arguing against these regulations should reflect just a little on that story and on the lessons from it.
Lord Mackay of Clashfern: My Lords, we all certainly need to reflect quite a lot on our attitudes and conduct. As I see it, these regulations for Northern Ireland, dealing, as they do, with sexual orientation, differ considerably from any of the legislation outlawing discrimination on other grounds. Let me take a moment to explain why.
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