Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006

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, anda single equality commission. Work has progressedon 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 rightduring 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.