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 attacking fundamental religious freedoms. Yet, that is what is being said here. The newspapers in Northern Ireland are full of controversy about the regulations. The High Court has granted permission for a judicial review of the regulations, and there is even a public demonstration against them outside Parliament as we speak tonight.
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 law is breached if someone can show that their dignity has been violated or that someone has created an intimidating, hostile, degrading, humiliating or offensive environment for them. At its lowest, “harassment” can constitute an “offensive environment” for a homosexual. Noble Lords should note that Regulation 3(4) makes it clear that the court must have particular regard to the perception of the complainant. Furthermore, under Regulation 52, the burden of proof is reversed so that the person accused of harassment will have to prove their innocence.
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,
“violating … dignity; or creating an intimidating … humiliating or offensive environment”.
Regulation 16(4)(a) states:
“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.
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.
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.
In a recent letter to The Times dated 30 November 2006, Meg Munn MP claims that the sexual orientation regulations are necessary as,
“lesbian or bisexual people are denied access to essential healthcare”.
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.)
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 discriminatory. What I do not believe is that they have the right to put those beliefs into action in a way that affects adversely the life and livelihood of other human beings. These regulations very simply seek to prevent that.
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.
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.
The sexual orientation regulations are not confined in their effect to the tendency of a person—orientation means, I think, tendency. These regulations are not about outlawing a particular tendency. They do more than that. They state that people who give services, supply goods or provide facilities must not discriminate on the ground of sexual orientation. The regulations imply that if those people interact with people of that orientation, they must also be prepared to allow them, if appropriate, to use the facilities that they provide for the purpose of homosexual practice. That is quite different from the other types of discrimination. It is the practice of homosexual acts that some Christians—but not the noble Lord who has just spoken—and considerable numbers of people of other major religions believe is wrong and sinful, and they do not think that they can conscientiously do anything to promote or further it.
I shall take one illustration, that of a person who provides bed and breakfast for people in his house. In that situation, if he receives a same-sex couple in a double room in his house, he is liable to be convinced of the fact that he is allowing a sinful practice of which he disapproves. That is the difference between this type of regulation and the discrimination regulations with which we are familiar and which most, if not all, Christians and other religious people support wholeheartedly. These regulations are different in that respect. It is interesting to notice that the Merits of Statutory Instruments Committee considered that there were difficult issues in these regulations that required the consideration of the House. I believe that that was because these regulations have a feature different from the regulations of former times to which we are accustomed.
My Lords, is it not the case that these regulations mirror what is already in law in relation to sexual orientation in employment and occupation, which adopts exactly the same approach, and that all that is prohibited is treating people less favourably on the ground of their sexual orientation, just like their race or their gender? Can the noble and learned Lord deal with those two points?
My Lords, the employment regulations outlaw discrimination on the ground of sexual orientation; that is, the tendency to favour a particular mode of sexual conduct. It is a tendency, not a practice. The difference between those regulations and these regulations is that these regulations, although they come under the heading of sexual orientation regulations, would make it unlawful for a person to refuse to accept a same-sex couple into their boarding house. I am much too old to offer any such facilities and the regulations are unlikely to affect me in any way whatever; I am thinking of a person who has a religious conviction of the kind that I have just mentioned and who does not believe that it is right in conscience to accept people into their house who would use it to practise a way of life that they considered sinful. That is the essence of the problem. The regulations seek to override their conscientious objection to that behaviour in their home.
The adoption agencies are another area of difficulty. There may be a regulation that helps to exempt adoption agencies that are charities—at least it does so on one construction of it—but there is a difficulty if an adoption agency declines to place children with same-sex couples on the ground of religious conviction. Again, that might be outlawed by the regulations. The regulations are not particularly easy to construe and I am not going to attempt to do so, because they are quite complicated, but this is the essence of the matter as I see it—differentiating these regulations and the kind with which we are familiar.
My Lords, if the hypothetical person who runs a boarding house has such an objection to this particular sin, should they not prohibit all the other seven deadly sins while somebody is in the bedroom of their house?
My Lords, that would perhaps be a counsel of perfection which the noble Lord would like to advise, but it is not part of the regulations.
My Lords, perhaps I may presume to introduce one other aspect to this debate that is of great importance to the people of Northern Ireland. Shortly before my retirement on 31 December as Archbishop of Armagh and Primate of All Ireland, I found that it was my duty to join episcopal colleagues in drawing the attention of the general public to the tremendous concern that we as bishops felt about the manner in which the process of legislating in this place and in the other place for Northern Ireland was being followed. We had to make our concerns public for the simple reason that we believed that some of the process that was being adopted by Her Majesty’s Government in relation to Northern Ireland was in every sense a denial of rights. This debate, while it has so far centred on doctrine and personal religious beliefs, is an example of what can happen when the Government follow a certain process through Orders in Council and regulations, as is the case this evening.
What I am speaking of has nothing to with party politics or denominations. It is something that should be of genuine concern to this House, particularly to those who do not come from Northern Ireland, but who in England and Wales will shortly, so we are informed, have to engage in a debate of this nature.
Over a wide range of subjects, not least this present one, current procedures place some of us in an impossible situation, where we agree with large sections of legislation—where we agree with the spirit of it and recognise that it has to do with human dignity and equality—but cannot do otherwise than challenge other parts of it. The process to which I am referring denies us the opportunity to do that. To support such proposals in total denies our rights to question or amend.
I shall illustrate this dilemma, which I and others feel tonight, with reference to some current legislation that has, or will, come before this House. The main churches in Northern Ireland—the Church of Ireland and the Roman Catholic, Presbyterian and Methodist churches—received the consultation documentation on 29 July and a response was demanded by 25 September. Noble Lords will recognise that this was a major holiday period, when anything akin to a full response was impossible. If the views of the main churches were of interest to the Government and were genuinely sought on such an important and sensitive issue as this, which has to do with dignity, equality and justice, how were we expected to respond with integrity? Consequently, we find ourselves this evening supporting much, but unable to press our concerns on parts that are unclear and a source of deep anxiety to many Christians in Northern Ireland.
Of equal importance to this concern on the consultative process on Orders in Council are the following examples. A huge document was received for consultation by the churches on charities review. Views were invited, we were told, on 7 July and expected by 13 October. On the adoption law, views were invited on 4 July and a response demanded by 1 September. A mammoth amount of paperwork on education was received on 28 November for a response by 19 January. In addition, at any one time, my colleagues and my staff were dealing with several such requests at the one time. How can those of us wishing to support fair and detailed analysis of important legislation, but who are confronted by such restricted timescales, convince people of the merits of good government?
As noble Lords know, unlike most legislation, neither Orders in Council nor regulations can be amended and they are denied full parliamentary scrutiny as I understand it. Surely where such situations arise there is an additional legal and moral burden on the Government to be seen to provide reasonable additional consultation, in the name of good government. In Northern Ireland, where the onus is placed on this House and the other place in the absence of a local Assembly, surely that moral responsibility is even more important. I believe that the Government should have instructed civil servants along those lines.
It is also obvious that broadly similar legislation applying separately to Northern Ireland and to the rest of the United Kingdom is accorded different response times in different parts of the kingdom, to the disadvantage of the people of Northern Ireland. It prompts me to ask: what if the regulations proposed for England and Wales ultimately differ in any manner from those proposed for Northern Ireland? What will be the result for the United Kingdom as a whole? That is a very serious possibility, which I ask this House to take into consideration.
The churches play a vital role in charities, adoption procedures, education and now equality issues. I believe that we do not have to defend the role that we have played or the voice that we have given to the population on these issues. These issues have an impact on the life of the voluntary sector and the wider community, and much of the legislation on those other areas is to be welcomed; equally, however, much of it is controversial and deserves much closer scrutiny than is possible under our present procedures.
It gives me, after my years of public service, no pleasure to make those points. But I appeal to the Government to recognise the dilemmas that the current procedure presents to many of us, including myself. Should it be the case—I say, should it be the case—that fast-tracking controversial legislation is simply a lever to force the restoration of devolved government for Northern Ireland, I would have very serious concerns. Be that as it may, a serious consequence of the current methods of making law for Northern Ireland is to leave open the way for such perceptions to prosper. In my years of experience, if I have learnt anything, it is that—I think that those noble Lords who have served in the Province would agree with me—perceptions can become realities overnight. In the interests of good government, that is surely highly undesirable.
This debate illustrates the consequences of that lack of scrutiny. It poses very serious issues, irrespective of the detail of the subject matter covered by the regulations. I suggest that the way in which this is being done, in any democracy such as ours, poses very serious issues, and I for one felt bound to express those concerns to the House.
My Lords, a number of Peers, perhaps better qualified to speak than I am, wish to contribute, so I shall be brief. I support the regulations, not because I support homosexuals and lesbians, or because I have no morals or Christian faith—I hope that I have both—but because I believe in equality. It is something that I have worked for all my life, whether in religion, colour, disability, gender or class, and I see no difference in affording the same equality in sexual orientation. There has been quite a lot of talk in Northern Ireland—the noble Lord, Lord Morrow, has referred to it—about bed and breakfast accommodation where two men or two women might share a bedroom, something that I have done numerous times. Having attended numerous conferences over the years, I have shared a bedroom with another woman, but I cannot remember ever being asked what I was going to do in the room.
There is also the suggestion that, if these regulations were passed, it would be un-Christian and all Christian people in Northern Ireland would be outraged. But I have in my hand an article written by a Christian organisation whose headline is, “New legislation not to be feared by Christians”. Indeed, as any of your Lordships who were watching “Heaven and Earth” on television last Sunday will know, this legislation was one of the topics on the programme. Viewers were asked to e-mail and text in their views. The majority of viewers who responded were in favour of the legislation. So it is wide of the mark to suggest that all right-thinking people are opposed to it.
I agree with the noble and most reverend Lord, Lord Eames, that there is a lot of uneasiness about the way that this is being done. But if you look at Northern Ireland, you think of the Equality Commission, the Northern Ireland Human Rights Commission, Help the Aged and Age Concern, which all strongly support these regulations.
Although I can cite all these organisations that support the legislation, there is a body of people who feel deeply offended by it and I support their right to oppose it. Across Northern Ireland, even among those who support the regulations, there is deep anger and a feeling of unease at the speed with which they are being put through. As we have heard, the consultation period was short and requests from groups for extensions were denied, even though that was granted in Great Britain. So it is easy to understand the feeling in Northern Ireland that the people there are being used as guinea pigs.
Given the nature of the regulations, would not the Northern Ireland Office have been better advised to take more time over them? Indeed, could they not have been brought in at the same time as the legislation for Great Britain, which I understand is to be April 2007? This kind of consultation leaves Northern Ireland feeling insulted, not consulted.
I concede that the Government have taken on board some of the suggestions—the noble Lord, Lord Morrow, referred to some of them—that came out of the short consultation period and that some changes have been made and some safeguards have been put in. But I ask the Minister two questions. First, why was the consultation period shorter than the one in Great Britain? Secondly—and the noble and most reverend Lord, Lord Eames, has already referred to this—if and when the regulations for Great Britain come to be debated and they are amended or indeed not passed, where would that leave the regulations for Northern Ireland? Would they be withdrawn?
My Lords, we must thank my noble friend Lord Morrow for giving us an opportunity to pass judgment on these highly controversial regulations, which came into force in Northern Ireland nine days ago without any parliamentary debate or vote. They have been rushed through, after the briefest possible consultation during the summer holidays—as the noble and most reverend Lord, Lord Eames, made clear in his deeply impressive speech—and have been introduced under direct rule powers so that Northern Ireland’s democratically elected representatives have had no opportunity to consider them. Had they done so, I should not have been surprised if Sinn Fein and the DUP had joined forces to oppose them.
The regulations include a widely drawn harassment law, which my noble friend Lord Morrow has already described. He explained its implications, which would have been very serious. Those responsible for drawing it up might have remembered that a similar harassment law covering religion was rejected in a decisive vote by this House on the Third Reading of the Equality Bill last November on an amendment moved by the noble Lord, Lord Lester of Herne Hill. Moreover there is, as I understand it, already a firm criminal law which protects everyone—the Protection from Harassment (Northern Ireland) Order 1997.
It is clear that the new regulations, while seeking quite reasonably to meet the concerns of lesbians, gay men and bisexuals, may have damaging effects on Christians and Christian churches of all denominations, Christian schools, Christian adoption agencies, Christian printers and Christian conference centres. They may be asked to provide services that involve them in condoning or promoting a lifestyle that conflicts with their fundamental beliefs about marriage and family life. It has been pointed out that the regulations may be used to discriminate against those who deeply believe that homosexual activity is morally wrong.
It is not surprising that eminent churchmen—both Catholics and Anglicans, including leaders of black churches—have spoken out strongly against the regulations. The Catholic Archbishop of Birmingham has said:
“Those who are elected to fashion our laws are not elected to be our moral tutors. They have no mandate or competence to do so”.
Jews and Muslims seem to be equally concerned.
The regulations will certainly have an adverse effect on freedom of speech. A Christian teacher would, it appears, risk prosecution if he or she were to teach the importance of marriage and add that sexual partnerships outside marriage should be avoided.
Noble Lords will be aware that in addition to the judicial review that has now been decided, some Christian lawyers have made a plea to the Queen, and the Joint Committee on Statutory Instruments has also put a number of questions to the Government and will be meeting to discuss the regulations on 24 January.
I have for some time thought that a substantial proportion of the laws that we in this House are asked to pass result from pressure from the homosexual lobby, while other minorities are ignored. For example, nine years ago, the Government commissioned a study of salmon and freshwater fisheries. An excellent report resulted that was welcomed by everyone, including the Government. The recommendations for actions by fishery organisations were quickly followed up. The Government promised to introduce primary legislation to deal with the rest when parliamentary time permitted. That was six years ago and nothing has happened, but year after year the Government reaffirmed their commitment to legislate. A rather sad letter that Defra sent to all the organisations concerned just a year ago states:
“Although we have bid for a Salmon and Freshwater Fisheries Bill in most years since the review … we have never been successful in getting a slot for it. For the current session, it made the reserve list (albeit at No. 47) but was eventually dropped because of pressure of other government business”.
A year later, there is still no sign of the Bill. Now, too, we see that the marine Bill—something of the greatest importance to this country—did not as expected make it into the Queen’s Speech. Perhaps it, too, will suffer prolonged delay.
Three and a half million anglers and uncounted environmentalists are given short shrift by this Government, but things are very different when the Government deal with the gay lobby. I asked the Library how many major statutes impacting on gay rights have passed since 1997. It gave me a list of eight. Lesbians, gay men and bisexuals have indeed been handsomely treated at the cost of other interests. There have been so many of these Bills that the Government seem now to have decided to take major steps to increase gay rights by avoiding primary legislation and using regulations like those now before us as a quicker and less difficult alternative.
Not only do Ministers such as Mr Hain push on this agenda; even civil servants are drawn into the campaign. A recent report says that proposals by officials in the Home Office—where else?—recommends that schools that lack enthusiasm for rooting out “homophobic” prejudice should be reported to the police, that there should be “hate crime co-ordinators” and that gay lobby groups should set up third-party reporting centres, seemingly a resurrection of the “Cooper’s snoopers” we heard of during the war.
One is bound to ask oneself why this Government are apparently so obsessed with extending the rights and privileges of gays. People may begin to wonder if they are planning to make homosexuality compulsory. This never-ending stream of measures for a particular lobby is surely likely to produce a backlash and make life for gays worse rather than better.
I have no doubt that we should support the Prayer so that the Northern Ireland regulations can be suspended and, one hopes, amended drastically or perhaps tidied away and best forgotten, while similar action is taken on the regulations proposed for Great Britain next April.
My Lords, I begin by saying something that may give comfort or cause concern to the noble Lord, Lord Smith. I must tell him that, should he come one dark and stormy evening knocking at the door of my house seeking shelter, he would be most welcome. He would be most civilly invited in and I hope that we would enjoy each other's company, because this is not quite as he would have us believe. He put the proposition that we should think about this legislation substituting the word “black” for “homosexual”. Of course, that sounds an interesting proposition, but I have to point out that “black” is about being. Sexual orientation is also about being. We would not wish to discriminate against people for being black or on grounds of their sexual orientation. The concerns being expressed this evening are primarily about sodomy rather than about sexual orientation—that is, doing not being.
As an old politician who likes to think he had reasonable experience in government, I cannot think of a single word to add from the point of view of good government to what has been said by the noble and most reverend Lord, Lord Eames. He said it in a way which should be a lesson to all of us who practise, have practised or will in future practise the arts of government.
Some things about this legislation give me concern. First, there is the question of those exemptions which are granted. In shorthand, one could say that to qualify for these exemptions one would need to establish that one had, or belonged to a group which had, a profound religious objection to some of these matters. What has happened to liberal values? Why is a thoughtful agnostic or atheist to be compelled to do that to which these regulations would give thoughtful deists a waiver? Is that not itself a prime example of discrimination?
Perhaps we should have some legislation to protect those who are not deists in the way protection is being given to those who are of a religious frame of mind. Is it not possible for such a person to hold the view that it is wrong for the state to compel him to refrain from arguing that sodomy is a social ill or to conscript him or his children into aiding and abetting it—if that is the right expression? Is it not possible for a person without religious beliefs to reasonably hold the view that it is wrong for the state to compel him to refrain from making arguments which he could make were he a member of a religious group?
I have other questions. I take it that it will be the noble Lord, Lord Rooker, who gets the short straw again tonight in answering the debate. Would, let us say, a woman patient in a hospital who declined to be treated or examined by an openly lesbian doctor be guilty of harassment? Could she be sued for such a thing, particularly if she had no religious beliefs about it, merely personal ones?
The noble Lord, Lord Lester of Herne Hill, recently tabled some Questions for Written Answer. He asked Her Majesty’s Government:
“Whether the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 would require a family-run bed and breakfast to let out a double room to a transsexual couple, even if the family consider it to be in the best interests of their children to refuse to allow such a situation in their own home”.—[Official Report, 13/12/06; col. WA 198.]
The reply from the noble Lord, Lord Rooker, was brief and to the point: “No”. However, paragraph 7.3 of the Explanatory Memorandum to the regulations states:
“The Regulations will also impact on hotel and bed and breakfast owners, who will not be able to deny a same sex couple accommodation on the basis of their sexual orientation”.
Which is correct, the answer “no” or the explanation in the Explanatory Memorandum?
The noble Lord, Lord Lester, also asked whether the regulations,
“would require all schools actively to promote homosexual civil partnerships to children from primary school age to the same degree that they teach the importance of marriage”.
The noble Lord, Lord Rooker, replied:
“No … That is rightly a matter for the Department of Education, Northern Ireland”.—[Official Report, 13/12/06; col. WA 198.]
That is one of the nicest passes, although I think perhaps a forward pass, that I have seen anywhere this side of Twickenham.
Surely the truth of the matter is that these regulations do not so much prohibit or require that certain things should or should not be done but provide a route by which aggrieved parties may seek legal redress if another party should do or fail to do certain things. It is rather akin to the position that would occur if I should be so foolish as to libel the noble Lord, Lord Lester. He would be able to seek redress swiftly in the courts.
Just as the laws of libel are sometimes used by the rich and powerful to intimidate into silence their less rich and powerful critics, so these regulations would leave perfectly innocent people in fear of legal action by the fanatical wings of the lesbian and gay pressure groups. Whatever the intention of those who drafted the regulations, they are bound to create not only a shadow or umbra of prohibitions but a vastly wider penumbra of the fear of prosecution.
We have only to reflect on the fear of the Derbyshire police recently that they might lay themselves open to action under the Human Rights Act should they publish photographs of two murderers who had walked out of prison and the later confident assertion of the noble and learned Lord the Lord Chancellor that there was no such risk. When we think about that, we realise the climate of fear that can be created by legislation of the sort that we are discussing today. After all, the Derbyshire police presumably have access to better legal advice than the unfortunate proprietor of a bed and breakfast establishment in Northern Ireland.
For those reasons, I am left full of disquiet about the nature of the regulations as well as full of very strong views on the manner in which this legislation is being foisted on the people of Northern Ireland at a time when, we hope, it will not be long before they have devolved government again.
My Lords, I am grateful to the noble Lord for mentioning me so many times in the context of questioning Ministers, but will he explain whether he takes the same view of claimants aggrieved by sex, disability, age, race or religious discrimination as he does of victims of sexual orientation discrimination? Does he take the view that that whole body of legislation should be repealed on the ground that it would be coercive and intimidatory to those who practise discrimination, or is it only homosexuals that he would deprive of relief?
My Lords, the noble Lord is again going off on a wrong track. This is about the requirement for, for example, a bed and breakfast establishment proprietor to facilitate the act of sodomy. It is not about discrimination against a homosexual couple. That is the point of which the noble Lord, Lord Lester, has uncharacteristically lost sight.
My Lords, I find it difficult to understand the point that the noble Lord, Lord Tebbit, is making and I should be grateful if he could elucidate on it further. He seems to repeat the point made by the noble and learned Lord, Lord Mackay of Clashfern, that somehow or other it would be improper to discriminate against someone on the ground of orientation but proper to discriminate on the ground of action. Surely the whole basis of our law is that you do not discriminate against people on the ground of action, provided that that action is legal, which in this case it is. So I cannot see the difference.
My Lords, let me put it another way for the noble Lord. He is supporting legislation tonight that would make it possible for two young men—chavs, shall we call them perhaps—to go with their girlfriends into a gay bar and then claim that they had been discriminated against or humiliated by the remarks or behaviour of people in that gay bar. Is that what we want to come out of this? It is not what I want to come out of this, but that is what will be the effect of it and that is why I object to it.
My Lords, I rise briefly to support what the noble and most reverend Lord, Lord Eames, said. This is not about attitudes; this is about the process, and the process we are going through tonight is even more unique than normal. What is the effect of an order in Northern Ireland, followed by a Bill for the remainder of the United Kingdom? Normally orders in Northern Ireland are either unique to Northern Ireland or they follow legislation in the remainder of the United Kingdom. This process is unique in a different way, in supporting an order that came in on 1 January, because the order is already in place, written on the Government’s instructions, without amendment and without consultation. We have in place an order that will be followed by a Bill—which may be introduced in another place first—that is extremely unlikely not to be amended on its way through. That is what is wrong as far as Northern Ireland is concerned. We will have in place an order that is substantially different from that in the remainder of the United Kingdom. There is no question about it. If this and another place do their job there is bound to be some amendment, purely to its written English if nothing else.
We have heard about guest houses. I am, as the noble Lord, Lord Tebbit, put it, the “unfortunate proprietor” of a guest house in Northern Ireland—though I do not think that I am unfortunate. I have had a few noble Lords to stay and I quite enjoyed it; whether they did is another matter. Please note that I do not have children and we are not—and here I shall be accused of discrimination—a very children-friendly place because we do not have a nursery or children’s toys. The point is this: a guest house is not a hotel; nor is it the local ironmonger’s or a travel agency. It is a place to which people go—very often as couples—to get away for a happy weekend together.
More than anything, a guest house is unique because it involves the guests in the family. They are not in room 214 where they can press a button—if they did so at Colebrook they would not get anything. They are among the family. If there are children, they can talk to the children. They may even have children as guests themselves and will involve themselves with those children. It may not be the religious belief of people who own guest houses, but purely their determination, that their children may grow up to be able to make a decision on whether they are influenced by activities of which their parents do not necessarily approve. This is absolutely vital.
My Lords, would the noble Lord answer two questions for me? Would he allow me to stay in his guest house on the basis of my colour? And would he allow me and my partner to stay in his guest house on the basis of our sexual orientation?
My Lords, I would be delighted for the noble Lord to stay on the basis of both his colour and his sexual orientation. There is absolutely no question about it. Please do come and stay and I will charge you appropriately. It will be precisely the same as for everybody else, I assure you. However, this is not about that. This is about having people among your family. That is the important thing. I accept entirely what the noble Baroness, Lady Blood, said about her working stays in guest houses. I suggest that she and her roommate would not normally carry on throughout the day the way that a couple would if they were away for a very special weekend alone. That is slightly different, but I accept that it may, under certain circumstances, happen, and it has happened in our house.
I am going to finish now. First, however, this is unique to Northern Ireland not only because it is an Order in Council; it is unique because it is being done prior to other legislation coming into effect in England. Secondly, the Government are introducing into a family something from which it is surely the right of the parents to protect their children until they are at an age at which they can decide for themselves.
My Lords, I would like to pick up on some of the scenes that I have heard this evening in the Chamber, and particularly I refer to the earlier scenes enunciated by the noble and most reverend Lord, Lord Eames. The regulations do not apply to England. The Church of England has already submitted its views on the important points that need to be safeguarded in the parallel regulations for Great Britain. We very much welcome the time and the trouble that the Secretary of State for Communities and Local Government is taking to consider all the representations that she has received.
The regulations might have been a great deal more satisfactory if Ministers and officials in Northern Ireland had also taken more time to engage in detail with the churches and others there about them. As a result, we find ourselves having to consider regulations that, while in some respects perfectly sensible, are in other respects unclear and cause a deep anxiety—and surely that anxiety is patently obvious to anyone who is listening—to Christians and other people of faith.
For example, when Parliament has no opportunity to make amendments, it frankly beggars belief that provisions on harassment were inserted at the last minute and without warning. It is not enough to say that harassment is a bad thing, which manifestly it is. The question is how to avoid making any new provisions so subjective that they act as a curb on the legitimate expression of opinion to which others take offence. It would be interesting to hear from the Minister why it has been thought necessary to proceed with such haste in one part of the United Kingdom when the Government’s sensible decision for elsewhere has been to study the matter at greater length as part of the discrimination law review.
The regulations clearly demonstrate the need to strike a fair balance between the rights of homosexual people to be treated with dignity and respect and the rights of Christians and other people of faith to manifest their religious beliefs, including those in relation to sexual conduct. In the view of a number of us on these Benches, these hastily prepared regulations fail to do that. Instead, they run the risk of facing significant numbers of people, as we have heard earlier in the debate, with the choice between complying with the law or with their religiously informed conscience. Whether that is the intention of the Secretary of State, or simply the unintended consequence of regulations produced with inadequate consultation, is unclear. But it causes many of us great concern.
The Government have, of course, sought to be helpful by including a set of special provisions for churches and other religious organisations in Regulation 16. Most Christian denominations and other faiths are not able in good conscience to make their places of worship available to those who wish, for example, to have their same-sex relationships or partnerships blessed and celebrated. Nor are they willing to make their church halls available to organisations that seek to promote the acceptance of homosexual relationships as equivalent to heterosexual ones. Nor can many Christians accept that children in church schools should be taught that same-sex relationships are just as valid as heterosexual relationships based on marriage.
The intention behind Regulation 16 is therefore helpful, but it appears to permit restrictions only if imposed,
“in respect of a person on the ground of his sexual orientation”.
All the mainstream Christian churches are clear that they have no wish to impose restrictions on the ground of sexual orientation as opposed to conduct. That being so, it is far from clear that the varied restrictions that religious organisations might wish to impose—namely, on the basis of homosexual conduct—would in fact be protected. It would also be helpful to have the Minister’s confirmation that they are intended to be.
Also of concern, in terms of exceptions, is what is expressly left out. Regulation 11 imposes a very wide general duty on educational establishments, and yet there is no special provision for faith schools. No one would seek to argue for an exemption in relation, for example, to admissions policies, but what about the teaching in relation to marriage? Whether in the classroom or in the context of collective worship, is a Roman Catholic school that teaches children the traditional Catholic view to be at risk of legal challenge? If that is not the Government’s intention, the regulation should have made that position clearer. The potential for bringing such claims risks putting schools in an unnecessarily difficult position. There is absolutely no case for this when in practice the whole area of sex and relationship education is being handled sensitively in faith schools within the present, very carefully balanced statutory framework. In the regulations for Great Britain, it is important that this matter is put beyond doubt. In the mean time, I can only express very real concern that the regulations for Northern Ireland do not deal with this matter satisfactorily.
In conclusion, there is much in these regulations that is uncontentious and a very proper protection against injustice, but overall they fail to strike that careful balance, which Parliament has been historically good at striking, that is needed particularly in areas where conflicting rights are engaged. They have all the hallmarks of haste and insufficient engagement, both at policy level and on detailed drafting with the churches. Whatever the outcome of tonight’s debate, it is crucial that the serious issues raised by Christian and other religious leaders are adequately dealt with before the regulations for the rest of the United Kingdom are finalised.
My Lords, it is extremely rare to see so many of your Lordships in the Chamber when we are debating matters to do with Northern Ireland. I think perhaps tonight I understand why. It is very good to see the interest being taken tonight. I will be very brief.
I have had from Stonewall two examples which may help your Lordships make up your minds about which way you will vote. One gay couple from Northern Ireland wrote to Stonewall recently saying why they were turned away late at night from a country hotel which they had booked months before in order to attend a sister’s wedding. They found the experience utterly humiliating. Stonewall also says that it heard from a woman who went to see her GP, having suffered from work-related stress. When the woman mentioned her lesbian partner in conversation, she was told that she was engaging in unnatural, inhuman practices and that it was none too surprising that she would be suffering from mental distress as a consequence. The unnatural, inhuman practices were being perpetrated by the GP. It deeply saddens me to have to say that. It is essential that these regulations are accepted by Parliament and that Northern Ireland should lead the way towards a tolerant, caring and humane society.
My Lords, it seems extraordinary to me that we are now debating secondary legislation that is so flawed that the High Court has granted permission for a judicial review on the question of whether this secondary legislation breaches the Human Rights Act. Surely it would have been better to await the outcome of that review, fixed for 1 and 2 March, instead of charging blindly on.
I am also surprised that we have been required to debate these regulations today before the Joint Committee on Statutory Instruments has been able to produce its report. Given that it clearly has questions about the regulations, surely it would have been better if we had waited a couple of weeks for that report.
The Merits Committee has expressed a certain amount of doubt, and the Joint Committee could have shed further light on the comments of the Merits Committee, but we have been deprived of that light by the Government’s indecent haste to get this debate out of the way. One of the members of that committee, Mr David Simpson MP, has said publicly:
“The Government’s timetabling makes a mockery of the parliamentary process. How are MPs supposed to make an informed decision about Sexual Orientation Regulations before the committee has had a chance to report? We have serious questions about how the regulations could interfere with religious liberty under the Human Rights Act. Peter Hain is rushing these regulations onto the statute book and seems prepared to sideline the parliamentary process in order to do so”.
It is quite clear that throughout this whole process the Government have been prepared to ride roughshod over everybody. As the noble and most reverend Lord, Lord Eames, and others have noted, the consultation timetable was quite unacceptable—a period of eight weeks which included the entire month of August, the main holiday season in Northern Ireland, therefore in effect four weeks. The Government’s own guidelines state that public consultation should be held over a standard minimum period of 12 weeks—not four weeks. In the rest of the United Kingdom, the consultation lasted 12 weeks, from 13 March to 5 June 2006. Why was Northern Ireland’s consultation in effect one third of that?
The regulations were made on 8 November 2006, just six weeks and two days after the public consultation closed on 25 September. Do the Government really expect us to believe that six weeks and two days is long enough to consider the 373 responses and to address the complex issues raised?
In the rest of the United Kingdom, the making of the regulations has been postponed while issues raised during the public consultation are being addressed. The Government have postponed the implementation of the regulations on the mainland until April 2007. Their consultation ended three and a half months before that of Northern Ireland.
Let us presume that the regulations will be made around mid-February. That constitutes 250 days between the end of the consultation and the making of the regulations, compared with 44 days in Northern Ireland. How does that stack up? It is an insult to Northern Ireland that the time between the end of the consultation and the making of the regulations is around one-fifth of that in the rest of the United Kingdom.
The right honourable Ruth Kelly was emphatic that following the Great Britain consultation and the concerns raised, it was important to,
“make sure that there is effective protection from discrimination while ensuring that people have the right to religious freedom”.
Were the issues raised by the Great Britain regulations much more complex than those raised in Northern Ireland? Or is this yet another case of “Northern Ireland—so what”?
My Lords, the legislation that we discuss changes but the arguments remain the same.
I thank my noble friend Lady Blood for her very powerful speech. Some may have thought that the whole of Northern Ireland would oppose these laws, and my noble friend made it very clear that that was not the case.
I would not normally speak on regulations affecting Northern Ireland, but as one of the few gay Peers in your Lordships' House, I know only too well how essential these regulations are. I argued passionately for them last year, and I pay particular tribute to the Government for ensuring that they have come forward. The widespread incidence of unfair treatment on the ground of sexual orientation led to this House supporting that amendment and voting to outlaw this kind of discrimination. I warned then that there would come a time when extending these provisions from religious groups which have these protections to lesbian and gay men would find opposition from those same religious groups which argued so successfully for the original legislation.
Look outside this building tonight, listen to the small but vocal crowd, and imagine how it feels to walk through that crowd and see so much prejudice directed towards you simply because you are gay, simply because you are yourself, simply because you exist. It is rank hypocrisy to object to this order, having argued for the very same protection for religious groups only a few months ago.
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:
“What do the goods and services protections mean to me? Quite simply, they mean that as a citizen of Northern Ireland who happens to be gay, I will be afforded the same rights and civil liberties that others already enjoy ... I will be protected … from people who wish to discriminate against me because I am gay. These regulations mean that I need no longer fear being denied hospital treatment. No longer will my partner and I be refused a double room together, causing the two of us such degrading embarrassment”.
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.
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 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?
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?
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 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.
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, 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.
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.
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, 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.
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 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:
“It is only right that we take the time to consider properly such a complex issue”—
and we have heard how complex it is tonight—
“so that we provide protection against discrimination in a way that is effective and appropriate and which gets the balance right so that people are able to hold religious views and beliefs”.—[Official Report, Commons, 19/10/06; col. 1014.]
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 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?
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 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.
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.
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.
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—
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?
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.
Would the regulations allow a charge of harassment to be brought against an education authority by an aggrieved parent?
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.
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,
“acknowledges the work done by the Office of the First Minister and Deputy First Minister in listening to the concerns of religious organisations and subsequently providing exemptions to ensure that core doctrinal beliefs are not undermined”.
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.
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 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.
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 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.
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.
That is your fault.
It might be as much yours, too.
I shall give an example. We are presently going through the process—
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.
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.
9 January 2007
House adjourned at 10.01 pm.