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Equality Act (Sexual Orientation) Regulations 2007

Part of the debate – in the House of Lords at 8:11 pm on 21st March 2007.

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Photo of The Bishop of Southwell and Nottingham The Bishop of Southwell and Nottingham Bishop 8:11 pm, 21st March 2007

My Lords, there is much in the regulations that is both sensible and uncontentious. The Church of England will certainly support the use of law to tackle discrimination and basic injustice. We also very much welcome the Government's decision to consult further before attempting to formulate harassment provisions in relation to sexual orientation. As the Joint Committee on Human Rights noted, the harassment provisions included in the Northern Ireland regulations were drawn too widely and too vaguely.

However, as we have heard already this evening, we are once again faced with regulations that give widespread concern to Christian people and other people of faith because they fail to strike the balance between competing rights. The balancing of competing rights requires that any restriction imposed on the exercise of one person's rights to protect the rights of another should be both necessary and proportionate. We do not believe that the regulations meet that requirement, especially in relation to religious adoption agencies.

For Parliament to require our Roman Catholic friends, after a brief stay of execution, to choose between acting in a way that conflicts with their religious convictions and closing down work that is manifestly for the common good reflects a new kind of secular dogmatism. It is a development entirely at variance with our well rooted tradition of religious tolerance and liberty. Especially when homosexual people are not only able but almost certain to seek the services of other agencies anyway, what is remotely proportionate about forcing the closure of the Catholic agencies?

It is hard to escape the conclusion that the right to freedom of religion is being treated as of lesser weight than other human rights. The sixth report of the Joint Committee on Human Rights appears to suggest precisely that, on the grounds that religion and belief are matters of choice and therefore less deserving of protection than sexual orientation, race or sex. If that is indeed the committee's analysis, it is certainly not one that we share.

Of course, discrimination on those grounds requires justification, but it does not follow that when the right not to be discriminated against comes into conflict with the right to freedom of religion, the right not to be discriminated against must automatically trump the right to freedom of religion. Indeed, under our domestic law, the importance of the right to freedom of religion where rights conflict is emphasised in Section 13 of the Human Rights Act, a provision to which absolutely no reference is made at any point in the Joint Committee's report. There are also concerns about schools, but I shall leave that to my friend the right reverend Prelate the Bishop of Winchester to deal with, if he wishes.

Turning to religious organisations generally, we welcome the inclusion of special provisions for churches and other religious bodies in Regulation 14. They will enable those bodies established for a religious purpose to apply religiously based principles of conduct in sexual matters to those seeking membership or who wish to take part in their activities or otherwise use their facilities. The intention behind Regulation 14 is, therefore, helpful.

It is therefore a pity that there are, in our view, a number of unnecessary obscurities in the drafting which could be the cause of wholly avoidable and undesirable litigation. I referred to those in the debate in your Lordships' House on the Northern Ireland regulations and the same is true of other concerns that have been brought to the attention of officials. Time, and time alone, will tell whether the Government's confidence in the adequacy of the drafting is well placed. What is abundantly clear is that the risks could have been much reduced if the provisions were enacted by way of primary legislation and subjected to the normal processes of legislative scrutiny. To make new law in this very sensitive area on a take-it-or-leave-it basis when the regulations were not even published for comment in draft is not, I argue, a sensible way to try to build consensus or, indeed, social cohesion.

In conclusion, although there is much in the regulations that is uncontentious and a very proper protection against injustice, they have failed overall to strike the careful balance that is needed in an area where conflicting and important rights are engaged. They have all the hallmarks of haste and insufficient engagement with representatives of the churches and other bodies in the detail of the drafting.

I hope the Minister will be able to give an assurance that in their approach to the forthcoming equality law review, the Government will give renewed weight to Section 13 of the Human Rights Act. For now, it gives me no satisfaction to say that the present regulations represent a disturbing erosion of religious liberty.