NI conscience proposal may have unintended consequences
The proposed amendment is contained in the Northern Ireland Freedom of Conscience Amendment Bill. The Bill proposes to amend the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. Notably, the focus is solely on sexual orientation. It does not propose to allow religious conscience to be invoked in other contexts, such as in relation to legislation banning racial or political discrimination. In other words, the measures are squarely and exclusively aimed at the LGBT community and allies.
A consultation paper on the topic, heavily loaded in favour of the proposal, is available here. The Equality Commission for Northern Ireland has roundly rejected the proposals.
Fostering and Adoption
Section 2 of the Bill is designed to create a faith-based exemption in the context of work done on behalf of a public authority by a voluntary adoption or fostering agency that is a faith-based organisation. It is designed to allow faith-based organisations to discriminate on the basis of sexual orientation in relation to foster care and adoption. There are already exemptions for faith-based bodies in Regulation 16 of the 2006 Regulations. The exemptions in Regulation 16, however, do not apply where a faith-based organisation makes particular types of provision on behalf of a public authority under the terms of a contract for provision of that kind made between that authority and the organisation. Section 2 proposes to row back this caveat by reapplying the faith-based exemption where the organisation in question is a voluntary adoption agency or fostering agency, even where it is working on behalf of a public authority.
The main aim of this clause appears to be to allow faith-based adoption and fostering agencies to turn down gay and lesbian applicants and same-sex couples. It appears to address a particular concern on Roman Catholic fostering and adoption agencies that the 2006 regulations prevent them from acting in line with their religious ethos.
Three points might be made in this context:
1. Section 2 appears to exempt an organisation from having to comply with the non-discrimination principle when it is providing support services to a child in care where the child is LGBT. It would appear, therefore, that the body would be free to treat the child differently from his straight peers, and impose conditions in respect of his care that would not be applied to heterosexual children. This may potentially include discredited conversion therapies.
2. It is important to bear in mind that this proposed exemption, if enacted, will apply to work done on behalf of a public authority, even where the work is funded by the State. It is certainly arguable that whatever right a faith-based organisation might claim to discriminate in its own private work, a body performing work on behalf of the State and being paid by the State to do so is under an obligation to behave as the State is required to behave – in other words, to treat all citizens equally. Certainly, there is a plausible argument that private bodies should not be subject to the same restrictions as public organisations. Yet, where private bodies are asked and indeed paid to perform functions on behalf of the State, they cannot expect that they will be allowed to undermine social policy objectives such as equality imperatives.
3. No person has a right to adopt. No gay couple has a right to a child or a right to adopt or foster. But if, amongst a series of potential adoptive parents or foster carers a gay couple happens to be the couple most suited to care for a particular child, it seems perverse to turn away their offer to care for a child. Given the severe shortage of potential foster carers, there is a risk that some children may be denied foster care in a loving and stable home because of policies of this nature. Children with special needs and older children are most likely to lose out.
Notably, according to greenlassie.com, citing a Belfast Telegraph report:
"The so-called ‘Catholic adoption agency’ that would have such deep-seated ethical objections to placing needy children with same-sex couples that it would have to close if the conscience clause wasn’t passed turns out to be – not a ‘Catholic’ agency and not in the slightest opposed to same-sex adoptive couples."Business exemption
Section 3 of the proposal would insert a new Regulation 16A into the 2006 Regulations. The proposal applies to a person “whose sole or main purpose is commercial or anyone acting on his behalf or under his auspices.” Section 16A would permit such a person (‘A’) to discriminate on the basis of sexual orientation where he or she restricts “the provision of goods, facilities and services; or...the use or disposal of premises,” where the aim in so doing is to “avoid endorsing, promoting or facilitating behaviour or beliefs which conflict with the strongly held religious convictions of A”.
The explanatory notes to the proposal suggest that a business person engaging in ordinary commercial exchanges with a gay or lesbian person could not avail of the exemption where there is no question of endorsing the person’s sexual relationship. The notes give the example of an Evangelical grocer selling an apple to a gay man, an act that does not involve endorsing a same-sex relationship.
On the other hand, the amendment (its proponents claim) would exempt a printer from having to print a book promoting same-sex sexual relationships or a photographer from having to take photos of a civil partnership ceremony.
It is, however, also possible that under this proposed amendment, a hotel or bed and breakfast may be permitted to turn away same-sex couples from its premises. If the proprietor believes same-sex relationships are wrongful, could he not claim that allowing a same-sex couple to use a room in his hotel would facilitate what he believed to be wrongful and thus infringe his beliefs? It is also possible that a landlord could refuse to rent a house or apartment to a same-sex couple under the proposed amendment.
Certainly, it would appear that any discriminatory action relating to a civil partnership ceremony would be exempted under these provisions. Intending civil partners could be denied the use of hotels and other facilities, the services of deejays, florists and caterers, or certain services such as the printing of wedding invitations. Indeed any event celebrating the relationship of a same-sex couple – an anniversary, for instance – would potentially fall within the proposed exemption. The amendment may even be wide enough to exempt a restaurant which turns away a gay couple on a date.
It is possible that the proposed exemption would also affect heterosexual people, given that it would also disapply rules banning discrimination by association and imputation. It would potentially allow two men or women to be turned away from a restaurant on the basis of a belief that they are gay, even if they are not.
The amendment notably, allows a person not only to avoid endorsing behaviour but also a belief, further widening the exemption.
Exemption clauses in this context usually apply to organisations run in accordance with a particular religious ethos or faith. In particular, the existing Regulation 16 (which provides some exemptions for religious bodies) does not apply to an organisation whose sole or main purpose is commercial. The proposed Regulation 16A, by contrast, applies to purely commercial ventures which are not officially faith-based and thus goes well beyond faith-based organisations. The business itself may be a secular business with no particular religious purpose or aim.
The business in question, notably, would not be permitted to differentiate between clients on the basis of religion or political opinion under the Fair Employment and Treatment Order 1998 (as amended). The proposed amendment is aimed squarely at LGBT individuals and same-sex couples.
It is unclear why LGBT people should be singled out for such treatment. Why do the proponents believe, for instance, that religious conscience should prevail here but not in the context of racial discrimination or indeed religious discrimination? If we accept this principle, shouldn't a business also be free to refuse to endorse a particular religious perspective? Would the proponents be happy with a provision that allowed an Evangelical restaurant owner to refuse to facilitate a celebration marking a First Holy Communion? Would the proponents be comfortable with an exemption that allowed a hotel owner to object to facilitating a reception for a mixed faith marriage where her religion disapproved of this?
Notably, the amendment does not seek to abridge the ban on discrimination on the basis of political opinion. Ironically, the litigant at the centre of the ‘cake’ case that seems to have prompted this initiative would likely still have a potential claim under the Fair Employment and Treatment Order 1998 (as amended) on the basis that he was discriminated against on the grounds of political opinion.
The proposed new regulation 16A is spectacularly vague and fuzzy. There is considerable uncertainty and vagueness in the phrase “endorsing, promoting or facilitating”. A particular danger lies in the word ‘facilitating’, which is potentially exceptionally wide, though the noscituur a sociis principle of interpretation (that words should be read in light of the words around them) may lead to a narrower, more restrictive interpretation of the term. The concepts of endorsement and promotion of a behaviour or belief are particularly vague and nebulous. The use of the word ‘promote’, in particular, raises questions similar to those that arose in respect of section 28 of the Local Government Act.
And how do we distinguish between a 'strongly held religious conviction' and a straightforward irrational prejudice? Is it not possible that a person's 'strongly held religious conviction' is the product of their prejudice and dislike of homosexuals rather than the root of same? In other words, some may look to religion to justify and validate prejudices that exist independently of religious sentiment.
Businesses generally have the right to turn away custom. Equality provisions restrict this right in relation to specific grounds. There is certainly a plausible argument that private persons should not be forced to behave as the State dictates and that businesses should be free to behave as their proprietors see fit. The risk in this approach, however, is that it potentially fosters segregation in the public sphere. Equality laws promote social cohesion and lean against the ghettoisation of communities, with all the attendant risks that that entails. Notably they apply both ways. If I run a grocery shop, I cannot restrict access only to LGBT people. (Nor would I want to. I love straight people. Some of my best friends are straight.)
There is perhaps an unintended risk in this push for conscience. A minority community, faced with the prospect of discrimination, humiliation and distress, will likely tend to behave in a risk-averse manner. If I know or suspect that I may be discriminated against if I ask a caterer whom I know to be Christian to cater my civil partnership, I’m unlikely to risk the hassle. I’ll be more likely to go with a caterer I know is gay or lesbian or gay-friendly. I will be more likely to approach a city centre hotel which has previously hosted a similar event, and avoid a rural hotel that might actually appreciate the business.
In short, these proposals are potentially bad for business. People of faith will potentially lose business that they might otherwise be quite happy to get. LGBT people will choose to do business primarily with each other or with a small range of known gay-friendly businesses. Faced with the possibility of being turned away from a hotel, couples may potentially choose to have their civil partnership in the Republic or get married in Great Britain.
Such provisions also potentially reduce the options open to LGBT people, thus reducing free competition and potentially driving up prices for a minority group. A couple with an effective choice of two hotels for their civil partnership reception are at a competitive disadvantage relative to a couple with four hotels as options. The hotels vying for the first couple’s business have less incentive to be competitive about the price as they know the couple’s options are more limited. The risk arises that in some areas (particularly, though not exclusively in rural areas) the range of choices available to gay couples may reduce to vanishing point. The Equality Commission for Northern Ireland has also pointed out the risk that, in addition to causing humiliation and distress, gay couples might incur extra financial costs as where, for instance, a hotel cancels a pre-booked room reservation at the last minute on learning the sexual orientation of the person who booked it. The latter is then left potentially with no room or only very expensive alternative last minute bookings. Given the prospect of this happening, some LGBT holidaymakers may opt to avoid Northern Ireland entirely, which would be a terrible pity given the jurisdiction’s undoubted beauty and charms (and a huge discredit to the majority of professional NI business people who have no truck with such prejudices).