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I was prompted to speak tonight by a number of letters I have received from gay men and women living in Northern Ireland, urging this House to support the regulations. If your Lordships will permit me, I shall read a tiny extract from one of those letters:

This is about real people and real people’s lives and their right not to be discriminated against. It is about the politics of prejudice. Rather too often, that is forgotten in the sometimes fanciful claims made about the impact of these new laws. They are fair and balanced, and they give gay people in Northern Ireland the same level of protection that we all want for ourselves. I urge the noble Lord not to press his Motion to annul this important legislation, which will improve people’s lives. If he does not listen to that plea, I ask this House to do what it has done on many other occasions, of which I am incredibly proud: to vote against it, reject his call and demonstrate overwhelmingly to the people of Northern Ireland and beyond that this House believes in fairness, justice and equal rights for all.

Earl Ferrers: My Lords, there have been some very impressive speeches this evening. This is a sensitive matter and it concerns Northern Ireland. For those reasons, I feel hesitant to dip my feet into the water, but I do so because I think that the noble Lord, Lord Morrow, is right to pray against these regulations.

The Government are concerned that people should not be discriminated against because of their sexual orientation. That is a perfectly reasonable point of view, but in their determination to see that that does not happen they are introducing regulations that will grossly discriminate against other people. As has been pointed out, the regulations fail to distinguish between same-sex attraction and homosexual activity. It is perfectly possible to show respect for the dignity of people who are attracted to a person of the same sex, but it is quite another thing to approve of homosexual activity. The churches do not do so and plenty of people who adhere to those churches do not do so either.

The sexual orientation of a customer may be irrelevant to, for example, a shop assistant or a car mechanic, but it can be of considerable importance and relevance to others. We have heard the examples of the person who lets out a room and refuses to allow a gay couple to take it, the photographer who refuses to photograph a civil partnership ceremony and the printer who refuses to print a leaflet advertising a gay ceremony. They could all be prosecuted. These regulations are installing new rights for homosexual people which override the existing rights of others who are perfectly entitled to their views and their religious opinions.

Part of the anxiety is due to the provisions in the regulations which make harassment on the grounds of

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sexual orientation illegal. Harassment is a subjective matter, depending on the perception of the person bringing the claim. If a person feels that his dignity has been violated and that someone has created a hostile, humiliating or offensive environment, he can sue. An organisation which is sued will be involved with legal costs in defending itself and possibly compensation. If that happens more than once or twice, such repeated actions can result in the business going into liquidation. That cannot be right. The Government said that it was not appropriate to legislate for harassment within the regulations, but that is precisely what they have done.

In analysing the results of the consultation, the Government say that there seems to be some misunderstanding about what they intend. With the greatest respect, it does not matter what the Government intend; it is what the law says that matters; it is what the local authority official or the local lawyer reads into what is written that matters. They will say, “The regulations say this and so we are right to do that”, or, worse, “The regulations say this, so we must do that”. They are the ones who will enforce—a word which the Government love—the regulations. I believe that there is enough in the content of the regulations to make them quite inappropriate for passing into law.

What about the circumstances of their introduction?

9 pm

Lord Smith of Finsbury: My Lords, before the noble Earl leaves the point about content, does he agree with the existing law of this country which says that harassment against an individual on grounds of race is wrong? Does he also, therefore, agree that harassment against an individual on grounds of his sexual orientation should be wrong?

Earl Ferrers: My Lords, it is not as simple as that, as the noble Lord knows. The Government said it was an improper vehicle by which to introduce harassment because harassment is a perception by one person of another. That is why I think it is wrong for it to be done in this case.

It is surprising, as the noble and right reverand Lord, Lord Eames, and others have said, that the consultation period lasted only eight weeks, even though it should have been 12 weeks. It has been pointed out that that was far too short a time, particularly as it was during the summer months. The Joint Committee on Statutory Instruments is still considering these regulations, despite the fact that they came into operation on 1 January. It would have been more courteous and more correct to have waited for the views of the Joint Committee, otherwise what is the point of having a Joint Committee?

Is not the real reason for all this that the Secretary of State for Northern Ireland was determined to get these regulations in place in Northern Ireland before Stormont takes over power, before 24 March? One wonders why the Secretary of State did not let Stormont make up its own mind on these delicate matters which relate to the people of Northern Ireland. As the unionists have more seats, he knew that, left to Stormont, the regulations would not have

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been introduced. One might then say, “Let Stormont remove the regulations, if that is what it wants to do, as soon as it takes power”. But that could not happen because—I am not familiar with all the niceties of Northern Ireland politics—Sinn Fein and the SDLP have a lock over these matters, and they would never agree to the regulations being removed.

So, the Secretary of State is forcing these regulations on the people of Northern Ireland against their wishes, against the wishes of those who represent them and while the Secretary of State is still in a position to do so. Having done that, what will the Government do? They will say that now the regulations are in operation in Northern Ireland, we can have the same regulations for England and Wales. It is important that these regulations should not criminalise the practice of a person's faith, but they will. They tread over religious sensitivities and they create fear. The way in which they have been introduced is highly undesirable. For those reasons I hope that the noble Lord, Lord Morrow, will continue with his Prayer.

Lord Lester of Herne Hill: My Lords, we on these Benches warmly welcome these regulations. We entirely support the Government’s position. We very much hope that if this Prayer against the regulations is moved to a vote, it will be roundly defeated. I shall try briefly not to repeat what others have said, but to add new points.

I found the speech of the noble Lord, Lord Smith of Finsbury, deeply impressive. He has made it unnecessary for me to say much of what I would otherwise have said. I am a former special adviser to the Standing Advisory Commission on Human Rights in Northern Ireland, and I have great affection for its people—even though, particularly when talking about matters of sex, some of them sometimes nearly drive me demented. That is almost as bad as talking about religion.

It has not been said tonight that Northern Ireland has been a pacesetter for anti-discrimination legislation, often leading the way with the rest of the United Kingdom following. I am old enough to remember the Van Straubenzee report, which led to the fair employment legislation that was much stronger than what I was able to accomplish at the Home Office in the mid-1970s. Under the noble Baroness, Lady Thatcher, that was strengthened greatly in 1989; we had nothing comparable to it. Remarkably, in Section 75 of the Northern Ireland Act 1998, there is a provision compelling the promotion of equality of opportunity between people of different sexual orientation, among other things. We do not have that, of course. There is already a human rights commission in Northern Ireland, and a single equality commission. Work has progressed on a single equality Bill from a fairly early stage. It is not at all unusual for Northern Ireland to be first with excellent civil rights legislation on discrimination.

These regulations must be read in context. No noble Lord has yet done so. First, there is the international context, now part of our system through the Human Rights Act 1998. These regulations, as the Human Rights Act commands, must be read and given effect,

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if possible, in a way compatible with fundamental human rights and freedoms. Those fundamental rights include freedom of religion, conscience, speech, association and non-discrimination. Therefore, when courts have to interpret and apply regulations, they must make quite sure that they do not disproportionately or excessively encroach upon those fundamental freedoms. Some points made by noble Lords on free speech or freedom of religion are simply points about the importance of those rights, against which these regulations, like all regulations, must, if possible, be read.

Although freedom of religion is a vital freedom, as are freedom of conscience and freedom of speech, so is equal treatment without discrimination. The European Convention on Human Rights provides that everyone is entitled to the enjoyment of the rights in that convention without discrimination, covering, for example, sexual orientation. It applies, for example, to education. There must be no discrimination based on sexual orientation in education, otherwise Article 2 of the first protocol of the convention, read with Article 14, would be breached.

That is relevant because if the Government did not introduce these regulations in Northern Ireland and comparable regulations in the rest of the United Kingdom and there were then a victim of, say, sexual orientation discrimination in access to education, the UK would be in breach of the European convention. In particular, it would be in breach of Article 13, which says that there must be an effective national remedy. I hope the Minister will confirm that the United Kingdom, in introducing these regulations, is among other things giving effect to our international obligations. The same will apply when other regulations—not a primary Bill—are later introduced in the rest of the United Kingdom.

That is not all. The Northern Ireland Act, as noble Lords from Northern Ireland will know better than I do, does not devolve responsibility for compliance with the European Convention on Human Rights. That matter was specifically reserved to central government. Therefore, even the great Stormont, when it is able to function again, does not have the power to act in a way that over-rides or disregards human rights. The Secretary of State may, if necessary, deal with the matter. If Stormont were to repeal these regulations I am not at all sure whether that would not of itself involve a breach of the human rights legislation and the European convention.

We are not dealing in a vacuum so far as concerns earlier legislation. The Republic of Ireland enacted similar legislation as long ago as 2000 in the Equal Status Act. It covered sexual orientation discrimination and harassment in similarly loose and vague terms. I am not aware that there has been any abuse or that any problem has arisen in the Irish Republic, a point made on 11 December when the transitional Assembly had that extraordinary debate on these regulations. The DUP was isolated politically in that debate, the other Northern Ireland political parties speaking in favour of the regulations in the main, while the DUP had its commitment against the regulations. Points were made again and again about, for example, the situation in the Irish Republic.



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The regulations are also not in a vacuum so far as concerns our own law. In 2003 the employment equality regulations dealing with sexual orientation were passed in virtually identical form. All that the Government have done is to extend them to education, goods, services, facilities and public sector duties. In the way that they have done for gender, race and religion, they have now done the same for sexual orientation. So far as I am aware, there has been no problem in the interpretation and application of the 2003 regulations. No noble Lord today has suggested to the contrary.

I am not an uncritical supporter of what the Government are doing. On behalf of my party I should make that clear. In the first place, although it is now academic, we believe that there should have been a single equality Bill which put together all the different strands and could have been, therefore, a coherent piece of legislation rather than bits and pieces in regulations one after the other. In that way, the public and Members of both Houses might have understood better the pattern of legislation. But that is water under the bridge.

I am also concerned, as are other noble Lords, about the vaguely defined concept of harassment. As has been said, I moved successfully the amendment to the then Equality Bill which removed the concept of religious harassment, mainly because of my concern for free speech and the divisiveness of having one religion pitted against another in the county court with no filter leading to compensatory remedies. That seems mischievous and to do no good. I very much hope that our support today for the harassment provisions in these regulations is not interpreted by the Government as a green light for support by us for doing the same thing with religious harassment. Religious harassment is different. It implicates free speech and religious practices in a completely different way. The reason that I think that the Government were right in the consultation to change their minds as they did about sexual orientation harassment becoming a civil wrong is because, as the noble Lord, Lord Smith, among others, pointed out, when you harass a person because they are gay you are harassing them for something with which they are born. When you harass a woman because she is a woman, it is because of her gender. When you harass someone because of their race, it is because of their birthright. Because harassment against gays is a particularly widespread social evil in this country, it seems to me that the Government were right during the consultation to change their minds. They were open-minded. They had reservations to begin with.

9.15 pm

The Government have been criticised this evening about the consultation, and it will be for the Minister to answer the criticisms that have been made. However, in fairness, I would like to point out that the consultation led the Government to widen the exceptions in favour of freedom of religion. They therefore used the consultation process in an open-minded way. I believe that they gave too many concessions to faith groups, just as they did in the employment equality regulations,

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but that is again water under the bridge. It will be for courts in due course to decide whether what has been done is compatible with the Human Rights Act, but that is for the future.

The noble Baroness, Lady O’Cathain, mentioned the judicial review proceeding. That has nothing to do with the matter we are concerned with this evening. The judge in Northern Ireland refused an application on judicial review for an interim order to hold up making the regulations law. He said that he was willing to hear arguments of all kinds in March, but was not willing to impede the legislative process. We are therefore completely free this evening to take our own view of the matter.

Finally, no noble Lord has mentioned the extraordinary debate that took place in the transitional Assembly on 11 December. A great deal has been said about the position of the churches, but what about the position of the politicians, the elected representatives of the people of Northern Ireland? I urge your Lordships to read that rather dispiriting debate, and if noble Lords do, they will see that the Alliance Party, the SDLP, Sinn Fein and the Progressive Unionist Party all spoke in favour of the regulations. It was the DUP that opposed them. There was a tied vote so the regulations stood. We have the benefit not only of the consultation but of the consultation with the elected representatives of the people of Northern Ireland. Therefore, let it not be said that we are somehow now riding roughshod. It is not our fault that the politicians in Northern Ireland have not got their act together sufficiently to be able to have their Assembly back again, but the sooner they do that, the better. Meanwhile, we are here to protect fundamental rights, and I hope that this evening we will defeat the Motion roundly.

Lord Glentoran: My Lords, it is always disconcerting to follow such an elegant speaker as the noble Lord, Lord Lester. We have heard some very passionate, well argued speeches in the House tonight. This party is not whipped; we have a free vote. My view, and this party’s point of view, is that there are some key issues relating to the way in which in recent times, under the present Secretary of State, the Government have been attempting to handle Northern Ireland legislation. Those who listen to Northern Ireland debates on a regular basis will know exactly what I am talking about and will have heard me say it before.

However, to make the point, where we come from, this is not a political issue. There are strongly held views, and we accept that, so I do not intend to detain the House for very long. That said, these regulations have aroused considerable controversy inside and outside Parliament, and the reasons why have been made clear tonight by the many speakers from different angles and different points of view. All the speakers, including, to some extent, the noble Lord, Lord Lester, have qualms about whether the Government have got this right.

At this stage, I have several questions to which I want precise answers from the Minister—I apologise to the noble Lord, Lord Rooker. Before that, I shall say something that has already been said, but I shall repeat it. It relates to the way in which these regulations

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have been introduced in Northern Ireland. As with the new rating system, there is a very strong feeling back home in Northern Ireland that Northern Ireland is being used as a testing ground for Great Britain. I see the noble Baroness, Lady Blood, nodding.

As the Government have no votes in Northern Ireland and, deplorably, no intention of seeking any, they simply continue to run Northern Ireland by diktat, irrespective of local opinion. Of course, the standard government reply is that politicians should agree on the restoration of the Assembly—well, they have not helped it much recently—yet I see no reason why these regulations had to be rushed through in Northern Ireland with minimal consultation prior to the possible restoration of the Assembly on 26 March. In case anybody wonders why I said that the Government have not helped very much, the Prime Minister’s outburst in the Irish Times was not helpful at all and led Ian Paisley to contradict him at a very delicate time.

I ask noble Lords to contrast what the Government are doing in Northern Ireland with the position in England and Wales. First, we were given a consultation period of eight weeks in Northern Ireland; in England, it was 12 weeks. Here in England, the Secretary of State for Communities and Local Government delayed, as has already been said, the introduction of the regulations so that they could be properly debated. In the other place, she said:

and we have heard how complex it is tonight—

Nobody could disagree with those good intentions, yet the Government have sought to push the equivalent regulations for Northern Ireland through Parliament under the negative resolution procedure, thus attempting to deny any debate whatever. That is the arrogance of Mr Hain.

It is due only to the pressure put on the Government by my honourable friend the shadow Northern Ireland Secretary and parliamentary colleagues from Northern Ireland that the regulations for Northern Ireland are being debated at all, after they have effectively been introduced. Once again, Northern Ireland is being treated shabbily and arrogantly by this Government when it comes to the method of introducing legislation.

I shall raise a few points about the regulations over which there is a genuine lack of understanding and clarity, and which have caused concern. The first is about the provisions relating to harassment, which has been at the top of most speakers’ agenda tonight. The Minister will know that this matter has exercised a number of people, and it was raised on the radio this morning by my noble and learned friend Lord Mackay of Clashfern.

The Government initially indicated that they were not inclined to include these provisions. Will the noble Lord tell us what moved the Secretary of State once

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again to change his mind on a statement that he had made only a few days previously? Considerable concern has been expressed about what precisely might constitute harassment. The noble Lord, Lord Lester, was eloquent on that subject, but, I believe, had some doubts as to how these provisions might be interpreted. The very broad way in which they are drafted also leaves open the possibility of a flood of test cases. For example, could a minister or priest who refused to serve communion to somebody on the ground that homosexual acts are sinful be sued for harassment? Will the Minister tell us how he thinks that can be avoided? What safeguards exist for people who simply act in accordance with what they sincerely believe to be the literal truth of the Gospel?

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