Equality Act (Sexual Orientation) Regulations 2007

rose to move, That the draft regulations laid before the House on 13 March be approved. 12th Report from the Statutory Instruments Committee and 14th Report from the Merits Committee. The noble Baroness said: My Lords, these regulations are the final stage in a journey which began in December 2005, when the Government accepted an amendment in this House to include a power in the Equality Act enabling regulations to be made to outlaw discrimination in the provision of goods and services—for example, in shops and hotels—in the exercise of public functions—for example, in the delivery of health services—in education and the rental and sale of premises. We have, therefore, reached a final chapter in a process which has been inspired by a determination to create a society which is fair in all respects and to all members of society. That means, quite simply, that no one will be denied the right to be themselves and to be treated fairly. And much of this debate centres on the right to dignity and equal treatment—the right notto be humiliated. It cannot be right, in the body of evidence that we have seen on discrimination against gay and lesbian people, that same-sex couples may be asked to leave a restaurant for holding hands, or that a school can turn a blind eye to homophobic bullying, or that young, homeless people can be asked to leave sheltered accommodation on grounds of their sexual orientation, or that an elderly gay couple in residential accommodation is denied the right to be together. This House certainly did not think that was right, which is why the Equality Act 2006 legislated for new protections on the grounds of sexual orientation. The regulations are certainly not without controversy. They reflect deep and sincere beliefs. They cover complex ethical issues. But we are confident that, having listened and having had an inclusive and thoughtful debate over issues of faith, conscience and the law, we have achieved a balance. That approach, significantly, has been endorsed by the Joint Committee on Human Rights. I appreciate that the nature of some of the concerns raised are expressed in the amendment tabled by the noble Baroness, Lady O’Cathain, and I want to try to anticipate and address some of the concerns that she may raise about religious liberty, classroom teaching and in relation to Northern Ireland. But I also want to try to reassure the House on the scope of the debate, its seriousness and the process that has been followed, and to lay to rest some of the misunderstandings and, indeed, some of the myths that have overtaken and sometimes confused the debate itself. I need to start by addressing some procedural concerns with regard to the passage of the new protections, before explaining the substance of the Great Britain approach, which broadly follows the Northern Ireland approach, albeit differing in five important respects. Perhaps I may explain the timetable under which these regulations have been laid and the extent to which it was determined by the consultative process and its outcomes. The case for new protections on grounds of sexual orientation and the process by which those protections would be brought into force was agreed upon in this House during the passage of the Equality Bill in 2006. The reason why this House decided on the inclusion of a regulation-making power, rather than including provisions on the face of the Equality Act, was to acknowledge the depth and range of sensitivities evoked, and precisely to allow time for extensive consultation on the scope and shape of the new protections. We were right to do so. Our consultation has been extensive. We launched Getting Equal last March, to which there were 3,000 responses. We were right to take extra time to consider those responses and the range of opinion that they reflected; but we also committed ourselves on 19 October to bringing the regulations into force this April, alongside similar provisions on grounds of religion or belief. The sensitivity of the issues raised by this legislation, particularly the nature of the debate on the role of faith-based adoption societies, meantthat 7 March was the earliest possible date for the introduction of the regulations. We published our response to the consultative document on the same date. The regulations were subsequently re-laid to take on board the technical drafting comments from counsel to the Joint Committee on Statutory Instruments, but there was no impact on the policy or substance of the regulations. The JCSI has now completed its scrutiny of the regulations and has approved them. The Joint Committee on Human Rights has reviewed the principles on which the Northern Ireland regulations were constructed—principles which are identical to the GB regulations—and endorsed the approach in its report. Those regulations were extensively debated and carried in this House on 9 January. In terms of the parliamentary process, therewas a debate on the voluntary adoption sector on21 February in the other place in Westminster Hall, and the decision that the regulations should be taken appropriately in Committee was also agreed between the three main parties. Perhaps I may suggest that few regulations have been subject to more intense or inclusive public scrutiny, while observing due parliamentary process. This debate will, I hope, also enable me to clarify and reassure noble Lords about what has been achieved—and I am grateful for that opportunity. The GB regulations broadly follow the progressive approach set out in the Northern Ireland regulations. It is gratifying that the principle of legislating inthis area was supported by almost 97 per cent of responses to the consultation. However, opinion was predictably divided on how to safeguard the rightto freedom of conscience and expression. We are confident that our regulations strike the right balance. We have already created protections on the grounds of race, gender, disability, and religion or belief. These regulations provide for the same protections in relation to sexual orientation. It is salutary, in considering these regulations, to reflect on whether we would be raising the same issues and questions in relation to other groups which are already protected. Equally, many of the representations received have confirmed the need for a religious organisation exemption to provide people with the necessary space and freedom to act in accordance with the basic doctrines of their faith. Of course that must be so. Of course we agree. It is for that reason that the Government have provided an exemption for religion or belief organisations, and those acting under their auspices, where that is necessary to avoid conflicting either with the doctrine of the organisation or the strongly held beliefs of a significant number of a religion’s followers. But where religious organisations choose to step into the public realm and provide services to the community, either on a commercial basis or on behalf of and under contract with a public authority, that surely brings with it a wider social responsibility to provide those services for the public as they are, in all their diversity, and not to pick and choose who will benefit or who will be served. The principles on which this approach is constructed are the same as those that underpin the Northern Ireland regulations, which have received the positive endorsement of the Joint Committee on Human Rights. Perhaps I may quote from that report. It states: "““Nobody is required by the Regulations not to have beliefs about the morality of different sexual orientations, or its compatibility with the tenets of one's religion, or punished or subjected to any other disadvantage for having such beliefs. In our view, the prohibitions on discrimination in the Regulations limit the manifestation of those religious beliefs and that ""limitation is justifiable in a democratic society for the protection of the right of gay people not to be discriminated against in the provision of goods, facilities and services””." That is precisely the balance that has been struck in the regulations. Throughout this process, the Government have fully recognised what a difficult and complex journey it is to steer a path between the demands of religious conscience and those of individual rights. To take issue with the first part of the noble Baroness’s amendment, the regulations do not compromise religious liberty. Let me be clear about a number of points around the application of the regulations, particularly with regard to their impact on religious liberty and try to lay to rest, I hope, some of the worries that were raised in the Northern Ireland debate and were rooted in misunderstandings. The freedom of a person to observe the teachings of their religion is not impaired, nor is their religious liberty compromised as a result of these regulations. The regulations will not make it unlawful for a church, a mosque or a temple to refuse membership of its congregation to a lesbian, gay or bisexual in accordance with its religious doctrine. Regulations will not force a priest to bless a same-sex couple. A minister of religion will not be open to litigation should he explain to a lesbian, gay or bisexual person, in the appropriate terms, why he cannot admit a practising homosexual to his congregation. It is untrue, despite what the Lawyers’ Christian Fellowship has suggested, that the regulations adopt the approach in law that the right to a homosexual lifestyle should take precedence over the right tolive a Christian lifestyle. Our regulations uphold the rights of all. Perhaps I may take this opportunity to remind the House that parallel protections on grounds of religion and belief will be brought into force on 30 April. Nor will providers have to tailor their services to appeal to lesbian, gay or bisexual people. All the regulations require is equality of access to existing services with regards to sexual orientation. The regulations do not affect fundamental freedoms. They maintain the longstanding liberty enjoyed by all faiths to observe and practise their faith. They do not provide special treatment for any group in society, but they provide protection from discrimination for individuals when accessing basic goods and services—something which the rest of us can take for granted. The regulations will be applicable to a wide range of activities and will have positive effects on the day-to-day life of lesbian, gay and bisexual people. For example, it will be unlawful to refuse a same-sex couple a double room in a hotel because this might cause offence to other customers; to refuse to provide a gift registration service for couples planning a civil partnership where such a service was offered to couples planning a wedding; to refuse admission to a bar because someone was gay; and to refuse a child’s admission to a school on the grounds of either their or their parents’ sexual orientation. These are significant new rights which will make a difference to people who are full members of society and whose right it is to be treated as such. The issues of religious liberty have been conflated also with issues of educational freedom. Thenoble Baroness, Lady O’Cathain, argues that the regulations will result in litigation over the content of classroom teaching. I have to disagree with her. I make it clear that the regulations will not impact on the subject matter that is taught in schools. The curriculum is a matter for the Department for Education and Skills. In the most extreme parody of the reality, it has been argued that the regulationswill require schools to promote gay rights or homosexuality to children. I thought that we had got rid of that debate when we removed Section 38. It has been suggested that the regulations will expose schools to legal challenge if they do not use specific books to teach pupils about issues related to sexual orientation. That simply is not, and could not, be the case. Faith groups are content with the current arrangements for how the curriculum is formulated. The regulations will have no impact upon that. Rather, they will apply to what happens in the classroom and will therefore reinforce the principles that are reflected in the existing statutory and non-statutory guidelines. There is no ambiguity. As now, a teacher in any school will still be able to express their personal religious or ethical views on sexual orientation, provided that it is done, as the guidance would express it, in an appropriate manner and within a suitable context. For instance, a teacher will be able to say, ““As a Christian, I believe that homosexual practice is wrong”” or ““The Koran teaches…”” What is unacceptable, however, and caught by these regulations is for a teacher to turn a blind eye to homophobic bullying, to single out a lesbian, gay or bisexual pupil for criticism on the grounds of their sexual orientation, to make a child feel that the school is not a place for them or that they will not succeed because they are being judged unfairly. That is the detriment to which Regulation 7(4) refers. The regulations will therefore impact upon how education is delivered to ensure that a classroom becomes a place where learning and not prejudice can flourish. The fundamental point is that all schools should already be complying with these guidelines, which govern the curriculum and require that teaching in this area must be delivered in an appropriate way, bearing in mind that schools should promote respect between pupils by safeguarding and promoting the welfare of all of them. The sex and relationship guidelines state that children must be taught in such a way as to be helped, "““to understand difference and respect themselves and others and for the purpose of preventing and removing prejudice””." I make it clear that schools will not be vulnerable to legal challenge if they simply continue to comply with the existing guidelines. The regulations should make no material difference to classroom teaching. That is why we do not believe that vexatious litigation will result from them. We do not believe that a sustainable case for litigation could be made on the grounds that a school promotes marriage in accordance with its religious ethos and does not actively promote civil partnership. I shall take the House through the comparisons with the Northern Ireland regulations. In broadly following the Northern Ireland approach, the Great Britain regulations have as their foundation principles that received support from a wide body of opinion. However, in light of specific differences in the legal framework and social fabric of Great Britain, these regulations contain certain necessary differences from those that were laid in Northern Ireland, which I shall explain. As this House knows, specific concerns were raised during the consultation period about the impact of the regulations on the work of faith-based adoption and fostering societies. Adoption law is different in Northern Ireland from that in England and Wales, where, since 2002, with the passage of adoption Act, same-sex couples in enduring relationships have been able to adopt children jointly. On 29 January, after a thorough and inclusive discussion with leaders of the Roman Catholic and Anglican Churches, gay rights groups and Jack McConnell, who represented the Scottish perspective, the Prime Minister and Secretary of State for Communities and Local Government made it clear that the Government could offer no specific exemption for faith-based adoption and fostering agencies offering publicly funded services. At the same time, it was also recognised that placing a child for adoption is a uniquely serious undertaking. Adoption is a service for children. The best interests of children must be paramount. No one has the right to adopt; it is a long and rigorous process. We have to be sure that it is the right course for each child and for each adoptive and prospective parent. The decision was therefore absolutely right. However, the Government were deeply aware also of the value and experience of the faith-based adoption agencies, particularly in placing children who are hard to place. On the grounds of principle and pragmatism, we sought to achieve a way forward which maintains the focus on the needs of the child and prevents any disruption to services currently being provided to adoptive parents and children, while requiring, as we must, those publicly funded agencies to operate within the law. It was therefore agreed that a transition period of 20 months wouldbe granted to faith-based adoption and fostering agencies until the end of 2008 to enable them, with help, to plan for and achieve the best possible outcome, whether that might come from partnership arrangements or from using their expertise in other ways. In the interim, any faith-based adoption or fostering agency wishing to take advantage of the transition period will have to refer same-sex couples to other agencies which they believe are able to assist. We know that this is challenging, which is why, to assist the process, the Prime Minister announced that he would commission an ongoing, independent assessment of the issues that agencies would need to address in the transition period We want those services to continue. They are much valued, and we want them to be retained and developed as best they can. The assessment process will be conducted by an independent adoption expert, supported by a panel with expertise in child welfare and adoption. The team will be asked to monitor, support and report on progress towards adapting to the new regulatory regime in the context of wider reforms to adoption services that are already under discussion. It is heartening that the British Association for Adoption & Fostering has stated that, "““we are pleased the government has carefully considered the intricacies of this sensitive issue… and believe this package should lead to a sensible solution””." We recognise that this is a complex debate, which exposes the deepest feelings, but, at all times, we have regarded the interests of the child as paramount. In this, we have the recognition of Cardinal Cormac Murphy-O’Connor, who noted and welcomed, "““the Government’s expressed desire that the experience and excellent work of our agencies is not lost, especially for the benefit of needy children””." The other differences from the Northern Ireland regulations are for clarity and efficacy. The Great Britain regulations make it clear that a civil partner may bring a discrimination claim on grounds of sexual orientation against a provider of goods and services who denied them access to a benefit or service available to a married person in a similar situation. This was felt to be of particular importance in Great Britain where, within the first nine months of civil partnerships coming into force, more than 31,000 people had registered as civil partners as opposed to just over 200 in Northern Ireland. We have also provided a specific exemption, on the advice of the DH, for the National Blood Service. The exemption allows for the National Blood Service to exclude donations by certain groups, including gay men, on the basis of close and regular analysis ofthe epidemiology of confirmed HIV and Hepatitis B positive tests among blood samples from people donating blood in the UK. Likewise, we have provided an exemption in relation to insurance, which will enable insurance companies to offer tailored policies where they can be linked to sound actuarial evidence. That is consistent with the requirements in the Sex Discrimination Act and regulations made under the Disability Discrimination Act. It is intended that this particular exemption will not apply beyond the end of 2008. Current best practice guidance from the Association of British Insurers makes it clear that insurers should not ask about sexual orientation or any HIV negative tests, but instead base their assessment of risk on answers provided about actual behavior, regardless of sexual orientation. We will continue to work closely with the ABI and others on this and legislate accordingly. The final substantive difference between the Great Britain regulations and those that apply to Northern Ireland is the decision not to include harassment within the Great Britain regulations. This House has debated long and hard on the difficulty of establishing a threshold for harassment in the goods and services context, and as a result we were clear in our consultation document that this cross-cutting issue would be looked at in the broader context of the Discrimination Law Review. I turn finally and briefly to the third part of the amendment of the noble Baroness. Noble Lords will be aware that the Northern Ireland regulations are in the process of being judicially reviewed. They were made under a separate order-making power and sit within a distinct equality framework. The outcome of the judicial review will be seen against that context. We are supportive of the Northern Ireland approach, which has been endorsed by the Joint Committee on Human Rights, and we are confident that the balance we have struck is right for Great Britain. The Government’s extensive consultation revealed widespread evidence of discrimination, and we do not believe that delaying important legislation until a decision has been taken on a judicial review of separate regulations in a different jurisdiction is justifiable. To sum up, these regulations have achieved the right balance between protecting religious liberty and human rights under the law. They have been the subject of long, complex and inclusive discussion. They have received the support of the JCHR for the balance that has been achieved. They take us forward in what has been a long journey towards recognising the rights of people irrespective of sexual orientation. It is a historic step forward towards dignity respect and fairness for all. I commend the regulations to the House and I beg to move. Moved, That the draft regulations laid before the House on 13 March be approved. 12th Report from the Statutory Instruments Committee and 14th Report from the Merits Committee.—(Baroness Andrews.)