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The Government talk about getting the balance right between effective protection from discrimination and the rights of people to their sincerely held religious beliefs and convictions. But what safeguards are there, to use an example that has already been given, for a church-based adoption society that refuses to place a child for adoption with a gay or lesbian couple? What about a church-run housing society that refuses a double room to a gay or lesbian couple? What about the position of faith-based schools, where there is potential for conflict with the regulations due to sincerely held religious beliefs and convictions?

Much emphasis has been placed on the position of those running guest houses, about which we have heard a lot tonight. What about guest houses whose owners refuse to let rooms to any unmarried couple? For the purposes of these regulations, can they still refuse to let rooms to people who are unmarried but in a civil partnership? Again, so much in the legislation is vague and will inevitably lead to test cases. Knowing the population in Northern Ireland, I can assure noble Lords that there will be those who want to test it, push it and try it.

What will be the position of church halls or Northern Ireland’s Orange halls? Will they be exempt on the basis of sincerely held religious beliefs and convictions? Many church halls and Orange halls in Northern Ireland are hired out to non-church groups for dance classes and keep fit, to cite two examples, and political meetings are regularly held in Orange halls. But neither church halls nor Orange halls would be hired out to groups or people who are fundamentally at odds with the organisations’ Christian ethos or sincerely held religious beliefs and convictions. I fear that that is yet more scope for litigation.

As I made clear earlier, these regulations are the subject of a free vote for my party. Nothing I have said today on their detail should be taken to indicate a party view. That said, my personal view is that the way in which these regulations have been handled is yet another example of the Government’s deaf, uncaring arrogance to the people of Northern Ireland. The current regulations should be abandoned and the Government should develop new regulations that properly balance sexual orientation and religious liberty rights following a proper consultation process, followed up with full parliamentary debate, as proposed by the Minister in another place when referring to proposed

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legislation for England, to which I have already referred. The noble Viscount, Lord Brookeborough, made it very clear that we could find ourselves in the ridiculous position of being a small part of the United Kingdom with a totally different set of standards and rules from those that will come out of the legislative process for the rest of the United Kingdom.

This has been a wonderful debate. It has been a great honour that so many people have taken time to speak on what is at base a Northern Ireland issue but one that has clearly touched the whole community of the kingdom. I have sought to raise a few concerns expressed to me and many colleagues in both Houses. I look forward to the Minister’s response.

Lord Rooker: My Lords, I am most grateful for noble Lords’ contributions and will do my level best to answer all their specific questions. I do not intend to speak for long, but I wish to put on record the detailed answers to those questions. So much of what has been said outside this House about the regulations is inaccurate. Some things have been said in ignorance of what has actually happened regarding these regulations. It is important to get it right.

I wish to start with some procedural points. This is not the Government riding roughshod over Northern Ireland. It is a negative resolution for one reason only: direct rule. If this resolution were being taken in the Northern Ireland Assembly, it would be a draft affirmative resolution. Under the rules of direct rule, primary legislation ends up as an Order in Council—unsatisfactory, but that is the rule—and an affirmative resolution ends up as a negative resolution. It will be put slightly differently in the other place for GB legislation—as it is not direct rule, the procedure is slightly different. We are following the rules set out for direct rule. We wish there was not direct rule, but that is in the hands of Northern Ireland politicians not the Government.

9.30 pm

Only the noble Lord, Lord Lester, referred to the fact that these regulations—which are what we are debating tonight, not an idea or resolution—were debated for a half day in the transitional Assembly in Northern Ireland on 11 December, less than a month ago. There is a full Hansard record of that debate. The motion was similar to what it is tonight—that is, to withdraw the regulations and leave the issue to be determined by the Assembly. It was effectively a motion to nullify. Out of 108 Members, the vote was 39 to 39. As such it was a dead heat and therefore was not carried; there was no majority.

As the noble Lord, Lord Lester, said, the mix of parties in favour of the regulations included the mainly nationalist parties. It also included the late David Ervine. There was a mix of party-political views in favour of these regulations by the elected politicians, the very people who we keep saying ought to make the decisions in Northern Ireland and get back and do the full job they are paid for. That happened and nobody referred to it in this debate. Indeed, one or two noble Lords said it was a tragedy and that the elected politicians of Northern Ireland had not had an opportunity to debate this. It is there on the record. I have to make that absolutely clear.

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One of the points made related to procedure. There are some misnomers as, since I left the other place, procedures have changed and I do not always keep up with them. The Great Britain regulations—they will cover England, Scotland and Wales—will be brought forward in due course. The plan was to do both together. The sequence of timing last summer was such that they would be published together and go through the Houses together. As I will explain in a moment, the level of response for Great Britain was far greater than in Northern Ireland. In Northern Ireland—I am not devaluing anyone’s contribution—the 400 consultation responses were all basically on one very narrow issue, so it was much easier. Because of the agreement the Government have with the CBI and business to bring in secondary legislation and regulations on two specific dates in the year, if we miss the slot for October-November we are then on the next slot, which is around April. That was done for all regulations at the request of business, so that we were not bringing different statutory instruments out every week of the year impinging on the business community. It was part of a deregulatory business, so that is the reason for that consequence of dates.

I thank everyone who has spoken today. I just want to put on record—

Lord Trimble: My Lords, the Minister has made the point that the Great Britain regulations were brought in in parallel. They have now been held back for further consultation. The possibility exists that that consultation might result in changes to the GB regulations. If that happens, can the Minister assure us that the Northern Ireland regulations will then be amended to be brought into line with the GB regulations and thus keep the parity that was there at the outset?

Lord Rooker: My Lords, the Secretary of State has made that abundantly clear on more than one occasion. It is the intention, whatever the case may be, to have broad parity between the regulations within the United Kingdom so there should not be any major difficulty with that.

Before I come to the set piece and answer some of the questions I would just like to run by the House some of the issues these regulations do not cover. They do not impact on the taught curriculum in schools in Northern Ireland—that is a matter for the Department of Education. The regulations cannot lead to the promotion of homosexuality in schools. They are concerned not with what is taught in schools but with ensuring fair and equal access to education and the facilities and services associated with it. It is not the Government’s intention to attack religious ethos.

Lord Tebbit: Would the regulations allow a charge of harassment to be brought against an education authority by an aggrieved parent?

Lord Rooker: My Lords, children can be removed from such lessons anyway, so, if parents are so aggrieved, their children would not be in the lessons in the first place.

Lord Tebbit: No.

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Lord Rooker: My Lords, it would depend on the merits and the circumstances of the case. There is a reasonable test for a responsible person. The courts would make a judgment on that, but these regulations do not impact on the curriculum of what is taught in class—I make that absolutely clear. That is a completely separate issue so far as the law in Northern Ireland is concerned. It is not the Government’s intention to attack religious ethos, teaching or practice, and the regulations contain exceptions that protect the doctrinal nature of religious observance. We have applied an exception to the regulations intended to ensure that matters of a doctrinal nature are protected.

I was asked a specific question by the noble Lord, Lord Glentoran, about offering the sacrament. The right of a minister to refuse communion is absolutely protected under Regulations 16(3)(b) and 16(4)(a). It is quite clear. The answer is that they would be protected. It is there in the regulations. We have heard criticisms from the noble Lord, Lord Lester, that the exemptions have gone much further than he would have wished.

In terms of accommodation, I know that there has not been a massive distinction in this, but there has been a throwaway line about “your own home”. No one can be forced to live with someone they do not wish to live with. Subject to certain conditions on the size of the property and the permanent residence of the property, that will be protected in the regulations. However, if you are running a commercial enterprise in the United Kingdom, you follow normal rules and you do not discriminate on religion, colour, ethnicity, gender or sexual orientation. That is what the regulations are designed for.

One further point was raised about the consultation. The four main churches had meetings with Ministers on no fewer than three occasions relating to the regulations. Whatever the distance and timing of the consultation—eight weeks—the four main churches had meetings on three separate occasions. Nobody can argue that their main concerns were not met. Indeed, the press release put out by the Evangelical Alliance on 23 November states that it,

The idea that churches and those of faith have been ignored and not been party to consultation or discussion does not stand up to examination.

The regulations have been drafted to allow for the views and opinions of religious groups and organisations to be protected where it is necessary to comply with doctrine. We do not accept the arguments put forward that churches will be forced to admit as members people whom they do not wish to belong to their church where that desire is motivated by their sincerely held religious views. Regulation 16 is specific on that point: no church or other religious group will as a result of the regulations be required to bless civil partnerships or undertake any sacramental or other core religious practice or observance that conflicts with their beliefs. That could not be more specific in dealing with the myths. I thought that it was a sin to tell a lie.

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Noble Lords: Hear, hear!

Lord Rooker: My Lords, I am not accusing anyone in this House of telling a lie, but it is what has been written and said outside.

Much has been said about bookshops. There was an example given here tonight about the hypothetical Christian businessman or women who will be required to act against his or her conscience when the regulations are enacted. The Government think that it would be wrong to elevate the human rights of one group over and above those of another group. We are trying to get equality of rights to stop discrimination. That is central to the regulations. It does not matter whether it is a bookshop, if it is a commercial bookshop. If a group in the voluntary sector sets itself up in business to do other things—running a mother and toddlers’ group, for example—and invites the public to use its building to bring in income and to embrace the community, would it refuse access to a toddler who had two mums? That is nonsense; it is a commercial activity and that would be a breach of these regulations. It does not affect their doctrinal beliefs, the giving of communion or anything like that. If people open up a business, whatever the business they are bound by the laws of the state, passed by Parliament, to exclude discrimination. That is the essence of what we want to do.

Many noble Lords raised the issue of harassment, and I accept from the debates we have had in this House in the short time that I have been here that, for many people, it is contentious. It is difficult for some people to grasp, as the problems we have had here show. It is wrong to say that we have ignored the will of the people of Northern Ireland and introduced some sweeping new offence. We have not done that. The definition applied to harassment in these regulations is exactly the same as that applied in other anti-discrimination legislation. It is subject, as elsewhere, to a test of reasonableness.

It is not enough, as has been suggested by some speeches, for a person to allege that they were placed in an environment which they found intimidating, hostile, degrading, humiliating or offensive. You have got to go far beyond that. In all cases, a court will decide, taking account of all the relevant circumstances and the facts of the case, whether a reasonable man or woman would have felt harassed in such an environment. While the Government cannot legislate to prevent malicious prosecutions, we believe the test is a stringent one. In addition, we still have the benefits of the Human Rights Act and the need for proportionality and propriety. The courts will have to determine whether such issues fall within the Act. In the end we have to rely on the good sense of the judiciary and the safeguards applied in the regulations.

I shall try to answer some of the detailed questions asked. The issue of harassment was raised in consultation. The noble Lord, Lord Glentoran, asked about that. There was an issue about what we were minded to do. There were lots of discussions as well as written consultations over that period.

The noble and most reverend Lord, Lord Eames, made a powerful speech. I think the whole House would agree with his point about procedures used for

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legislation relating to Northern Ireland. We have made the commitment—I repeat it now though I do not have the exact words in front of me—that if there is no devolution on 26 March then we will come forward with a different set of proposals for how we deal with Northern Ireland legislation in this House and in the other place. That is our firm commitment and we do not resile from it. We do not want to publish a Plan B because we want Plan A to succeed, but that it is our commitment. The noble and most reverend Lord raised all the issues that are wrong and defective about the way we do it now—I say defective rather than wrong. We are in a difficult position now, but I repeat the point about meeting the churches on three occasions.

The noble Baroness, Lady Blood, raised the issue of polls. A MORI poll prior to the consultation showed that 80 per cent plus agreed that discrimination in the provision of goods and services on the grounds of sexual orientation was not acceptable. That was a MORI poll. We have the elected politicians refusing to nullify the regulations and an 80 per cent MORI poll.

As I said about the eight-week period, this was chosen to meet the GB commitments to lay the orders at the same time. I hope I have explained that satisfactorily.

I listened to the interview with the noble and learned Lord, Lord Mackay of Clashfern, and read his powerful piece in the Telegraph this morning, as I also read Polly Toynbee’s equally powerful piece in the Guardian. These regulations are not concerned with homosexual practice or the facilitation of such acts. They concern only sexual orientation. Nothing prevents people having a belief. These regulations are designed to capture where they manifest that belief by discriminating against people. It is as simple and clear cut as that.

On whether the regulations will be withdrawn if the English regulations are not passed, the answer is no. The Secretary of State has the power under the Equality Act 2006 and believes this is required for Northern Ireland—where there is support for it.

On the point made by the noble Lord, Lord Tebbit, people are entitled to air their views on any subject but not to discriminate. That is the central issue of the regulations.

The noble Lord, Lord Tebbit, also raised points about the Written Questions from the noble Lord, Lord Lester, and the Answers that he received. Transexuality is actually dealt with under the gender laws and is not covered by these regulations, so the Answers that he quoted and the Explanatory Notes are both correct. There is no contradiction there.

9.45 pm

The noble Lord, Lord Tebbit, asked about the lady patient not being too keen on the lesbian doctor. The fact of the matter is that the doctor and the hospital are providing the services, not the patient; so the issue is not covered by the regulations. So there is no issue about that. I am glad to be asked the question, because it is one of those myths that would be out

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and running before you know it and which we can knock on the head straightaway.

The noble Lord, Lord Lester, referred to the judicial review. The judicial review application was for a suspension of these regulations from 1 January. The judge refused that and said, “No, Parliament should take its course. That is where the regulations are being debated and I will have a look at this in a few weeks’ time, in March”. That is what he intends to do.

I have covered most of the questions—and I am conscious of the time. We have had a good debate and I do not want to repeat things that others have said. We are not riding roughshod over Parliament. There is a separate issue to be dealt with here for GB and Northern Ireland; it has to be dealt with differently.

I do not apologise for saying this because I have said it so often before, but while direct rule continues and the Northern Ireland politicians refuse to take their responsibilities and go back, we shall not cease the pace of reform. The Secretary of State made it clear that the pace will quicken if they do not go back. We have made it abundantly clear that the status quo is not an option. We want devolution back on 26 March. If it is not back then, we will come forward with a better way in which to deal with legislation in Northern Ireland—and I have to say that we will have to deal with a new system for dealing with legislation for Northern Ireland for quite a long time if devolution does not take place on 26 March. Therefore, I hope that these regulations will be approved.

Lord Morrow: My Lords, I have listened very intently to all that has been said this evening. I thank all noble Lords who have taken part in what has been a most useful debate, which brings some degree of democracy to the imposition of these regulations. I have listened intently to what the Minister said in his reply. I am not saying that he has convinced me, because that would be a lie. Quite frankly, he has not.

I shall deal with one or two of the issues that the Minister raised. He makes much of the fact that the Government are not riding roughshod over the people of Northern Ireland. He went on to state that in fact the Assembly has already debated this issue and tied on a vote; but of course what he did not say is that the Assembly has absolutely no powers whatever to do anything.

A noble Lord: That is your fault.

Lord Morrow: It might be as much yours, too.

I shall give an example. We are presently going through the process—

Lord Smith of Clifton: My Lords, I am grateful to the noble Lord for giving way, but is it in order for him to go on making this speech? He has two choices—either to test the opinion of the House after what has been a long debate or to beg leave to withdraw the Motion.

Lord Morrow: My Lords, I thank the noble Lord for bringing that to my attention. It is my intention to test the opinion of the House on this issue.

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9.49 pm

On Question, Whether the said Motion shall be agreed to?

Their Lordships divided: Contents, 68; Not-Contents, 199.

Division No. 1


Astor of Hever, L.
Brookeborough, V.
Browne of Belmont, L. [Teller]
Caithness, E.
Carnegy of Lour, B.
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