Equality Act (Sexual Orientation) Regulations 2007

Part of the debate – in the House of Lords at 9:33 pm on 21st March 2007.

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Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Women & Equality, Cross-Portfolio and Non-Portfolio Responsibilities 9:33 pm, 21st March 2007

My Lords, we on these Benches support the approval of these regulations. We oppose the fatal amendment advocated by the noble Baroness, Lady O'Cathain. We hope and expect that the current and much delayed work on a single equality Bill will yield legislation that is fit for its important purpose of achieving coherence, consistency and clarity in promoting equality and combating discrimination effectively.

We agree with many noble Lords that it is unfortunate the law has to be reformed by secondary legislation, since, as has been said, this reduces the scope for scrutiny of the detail of the regulations, and that the reason for this is that the Home Office unwisely included religious discrimination in the Equality Act without providing also for sexual orientation discrimination. I remember the noble Lord, Lord Alli, and I both complaining strongly about this during the passage of that Act. The regulations are needed because, when the Equality Act is brought into force, both types of invidious discrimination are made unlawful.

The noble Baroness's amendment gives three grounds for blocking the regulations. None of them, even if they were substantiated, could justify that move. The amendment would mean that the Equality Act would forbid religious, but not sexual orientation, discrimination.

As the Minister so clearly explained at the outset, the regulations do not compromise religious liberty. There is no restriction in them on the right to believe and restrictions on the right to manifest one's religion or belief may be justified by the need to protect the rights of others. The regulations must strike, and do strike, a fair balance between the competing rights and interests.

Misleading homophobic and sometimes scurrilous attacks have been made outside Parliament by those who believe that there is no moral equivalence between homosexual and heterosexual children or adults and they believe that homosexuality is sinful. They are perfectly entitled to their beliefs; they are perfectly entitled to express their views; they are perfectly entitled to seek to persuade Parliament to agree with them; but it is the responsibility of the elected Chamber and this House to strike a balance between the competing rights and freedoms.

I shall give one example of the perfectly disgraceful propaganda that has been levelled against the Bill and which has caused me to put down Questions that were clearly answered by the noble Lord, Lord Rooker. An advertisement was taken out by a clearly very well funded lobby, calling itself Coherent and Cohesive Voice; a network, it said, of hundreds of Christian leaders in the United Kingdom, representing hundreds of thousands of voters. I asked the noble Lord, Lord Rooker, whether that great organisation had bothered to seek the views of the Government and he answered that it had not troubled to do so.

The organisation made allegations that were completely untrue. One allegation was that the regulations would force all schools actively to promote homosexual civil partnerships to children from primary school age onwards to the same degree that they teach the importance of marriage. That is untrue. It was alleged that the regulations would force a printing shop, run by a Christian, to print flyers promoting gay sex. That is untrue. It was alleged that they would force a family-run B&B to let out a double room to a transsexual couple, even if the family thought it in the best interests of their children to refuse to allow such a situation in their own home. That is untrue. It was alleged that they would make it illegal for a heterosexual policeman, fireman or a member of the Armed Forces to refuse to join a Gay Pride event promoting the homosexual way of life. That too is entirely untrue. I do not know where they get their funds from—they must have a lot of them—but that is an example of the kind of scurrilous propaganda that deliberately or inadvertently seeks to mislead the public about these regulations.

During the passage of the Human Rights Bill, the churches campaigned for complete immunity from the European Human Rights Convention. They were completely misguided in doing so. Instead, Parliament wisely enacted Section 13, which has been referred to by the right reverend Prelate the Bishop of Southwell and Nottingham. Section 13 requires the courts to have particular regard to the importance of the convention right to freedom of thought, conscience and religion when determining questions under the Act that might affect the exercise by religious organisations or their members of that right. That is an important safeguard and I am very glad that it is included in the Human Rights Act, but only the right reverend Prelate has drawn attention to it.

It is not the case, as the noble Baroness suggested, that the regulations compromise religious liberty; nor is there an abuse of democracy, as Cardinal Murphy-O'Connor claimed today, in Parliament approving the regulations to include the transitional compromise period for Catholic adoption agencies receiving public funding and providing a public service, a service which is most valuable and which we hope will continue. I say to the noble Baroness, Lady Morris of Bolton, that that is about the provision of a service to the public, where the interests of children are paramount.

I agree with every word of the compassionate and well informed speeches of the noble Baronesses, Lady Gould of Potternewton and Lady Howarth of Breckland, of the noble Lord, Lord Smith of Finsbury, and above all of the noble Lord, Lord Alli, who has been so conspicuous in combating some of the misconceptions that have arisen.

I have to say to the most reverend Primate the Archbishop of York that it is not correct to say that the regulations suggest a hierarchy of rights; nor is there any spider's web or a legal sausage machine. Furthermore—and I speak as a Jew—I am astonished to hear the suggestion that the principles of human rights are somehow incompatible with the Judaic religious code. I had thought—although I cannot claim to be as well informed as my noble friend Lady Neuberger, who is not here to tell us this evening—that the principles of human rights are universal, that they derive not only from the secular Enlightenment but from all the great religious traditions, including the Judaeo-Christian tradition, and that they all recognise the need for a fair balance between competing rights and freedoms.

The regulations—and no one has made this point—are to be read together with the provisions on discrimination in the Equality Act, which contain exceptions rightly considered to be necessary to protect the broad-based secular curriculum. That is why the exceptions are there. If the present regulations compromised religious liberty, they would need to be read and given effect under Section 3 of the Human Rights Act in a way that would be compatible with the convention rights, including the right in Article 9 of the convention to,

"freedom of thought, conscience and religion", and to manifest one's,

"religion or belief, in worship, teaching, practice and observance".

If a public official or authority, whether a Minister, a state-maintained school or anybody else, were to act in breach of Article 9 of the convention, a claim could be brought under the Human Rights Act for a breach of the Section 6 duty on the public authority seeking to ensure compatibility with a convention right, and these regulations would have to be read in that way—see Section 3 of the Act.

The right to religious freedom is not absolute. Article 9 makes it clear that it may be subject to,

"such limitations as are prescribed by law"— as they are in these regulations—

"and are necessary in a democratic society ... for the protection of the rights ... of others".

In this case, the rights of others are the right of homosexual people, including pupils and students, to respect for their personal privacy and their right not to be discriminated against on the ground of their sexual orientation in the enjoyment of other rights, such as the right to education.

It is the task of the legislature, and, if challenged in legal proceedings, of the courts to strike and maintain a fair balance between these rights and freedoms. The regulations are concerned not with what happens in the bedroom, but with the adverse and unfair treatment of the individual on the ground of that person's sexual orientation as a gay or lesbian individual. As has been said, it is as unfair and unjustifiable to treat a human being less favourably because he is gay as it is because he is a Jew, a Catholic, a man or of Asian origin, or because he or she is old or disabled.

The Government have wisely omitted harassment from the regulations for Great Britain and left that for consideration by the Discrimination Law Review. We have made it clear that we would oppose any attempt to reintroduce the concept of religious harassment, which was firmly rejected by this House during the passage of the Equality Bill, because of the threat to freedom of expression and religious freedom. We hope that the Government will heed that view.

Finally, the Joint Committee on Human Rights, on which I serve, has been accused this evening by no less than the right reverend Prelate the Bishop of Winchester of being illiberal. The Joint Committee welcomed the introduction of the regulations on sexual orientation discrimination as,

"a significant human rights enhancing measure".

We also welcomed the Government's acceptance that the prohibition of discrimination on grounds of sexual orientation should apply to schools without any exemption for particular types of schools, such as faith schools. In view of what has been said, I should give our explanation. We said:

"We do not consider that the right to freedom of conscience and religion requires the school curriculum to be exempted from the scope of the sexual orientation regulations. In our view the Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong".

Just pausing there, surely it is not illiberal to resist that kind of most objectionable propaganda against a pupil. We continued:

"Applying the Regulations to the curriculum would not"—