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

Equality Law Consultant Barry Fitzpatrick looks at the context of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and sheds light on its intricacies, its strengths and its weaknesses.

Rarely has a piece of equality legislation in the under-developed areas of provision of goods, facilities and services (GFS) had such a controversial introduction. The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (‘the GFS Regulations’) came into effect on 1 January 2007, unusually before equivalent legislation in Great Britain. In practice, it will become unlawful to refuse a lesbian, gay or bisexual (LGB) person access to services available to the public, such as a shop or restaurant, or use of facilities, such as a meeting room, on grounds of his/her sexual orientation (SO) (and perceived SO or by way of discrimination for associating with people of a particular SO). Indirect discrimination, harassment, and victimisation are also covered. Education is also covered as is disposal and management of premises. Discrimination in performance of some public functions, eg local authorities, health trusts, the Housing Executive, is also covered, but subject to some unexpected limitations. This will supplement the statutory duty on public authorities to show due regard to the need to promote equality of opportunity between persons of differing SO. There is a significant exception for ‘organisations relating to religion or belief’ so long as the organisation is not one whose sole or main purpose is commercial. There are also typical exceptions for legislative and judicial acts, small dwellings etc. The GFS Regulations will be enforced through legal action in the County Court. The Equality Commission can assist individuals in bringing cases and can conduct investigations into alleged breaches of the Regulations. It can also give advice to employers (including Codes of Practice) and conduct research into SO GFS discrimination.

Background

The recently published GB SO Regulations are based on the ‘religion or belief’ GFS provisions included in the Equality Act 2006. However, the NI Regulations are not based on the 2006 Act (NI already has GFS provisions in the Fair Employment and Treatment (NI) Order 1998) but rather on the GFS provisions of the Race Relations (NI) Order 1997 (RRO). In consequence, the NI Regulations are significantly different from the GB draft Regulations, particularly in that they include a provision on harassment and a stronger definition of indirect discrimination but also have a more limited duty on public authorities in performance of their public functions.

Regulation 3: Discrimination and harassment on grounds of sexual orientation

Given that these Regulations are modelled on the revised Race Relations Order, the definitions employed in the GFS Regulations are not a surprise. From a practical point of view, many cases will involve direct discrimination, such as a refusal of hotel room to a perceived LGB couple or a refusal of access to facilities or premises for an LGB organisation.

The SO GFS Regulations actually give us two definitions of indirect discrimination, the former being identical to the indirect discrimination definition in the SO Employment Regulations. Of greater practical and political significance is the inclusion of a harassment definition. As a result of controversy which had its genesis in relation to religious hate crime legislation in GB, the harassment provision on ‘religion or belief’ GFS in the Equality Bill was overturned during debate in the House of Lords and hence was not restored in the House of Commons. The inclusion of a power to make regulations to cover SO GFS discrimination was on the understanding that the SO Regulations would mirror the ‘religion or belief’ GFS provisions in the Act. Both the DTI and OFMDFM, in consultations earlier in 2006, were therefore ‘minded’ not to include a harassment definition in SO Regulations but, in response to the OFMDFM consultation, the ECNI and the Coalition on Sexual Orientation (CoSO) were adamant that they also include a harassment provision. It would appear that, in order to do so, the RRO was used as a model for the SO Regulations.

The violation of a person’s dignity or the creation of an ‘intimidating, hostile, degrading, humiliating or offensive environment’ will create liability whether the ‘unwelcome conduct’ has the purpose or the effect of creating such an environment. Hence various forms of homophobic abuse will be covered, for example the berating of an LGB by a health worker on the basis of his/her private life. It is the latter, ‘effects-based’ harassment which will be more difficult to determine, particularly if an LGB finds the provision of a service to be offensive but many LGBs would not consider it to be so.

However, the effects of the conduct are to be judged by an objective test, but including a subjective element. Regulation 3(4) provides: ‘Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) or paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B [the complainant], it should reasonably be considered as having that effect.’

Regulations 5, 6 and 9: Goods, facilities or services. Disposal or management of premises. Bodies in charge of education establishments

These provisions set out the standard definitions on GFS, premises and education. Clearly, the inclusion of a harassment definition is valuable here, particularly in relation to homophobic harassment in housing and education. While it is possible to bring a harassment case on the basis of a ‘one-off’ incident, the ‘environmental’ nature of harassment makes it more appropriate for continuing relationships such as in employment, housing or education.

Regulation 12: Public authorities

The provisions on performance of public functions are more problematic. They only apply to discrimination and harassment, ‘in the course of carrying out any functions of the authority, which consist of the provision of:

(a) any form of social security;

(b) healthcare;

(c) any other form of social protection; or

(d) any form of social advantage which does not fall within regulation 5 [ie GFS].’

This may be compared with section 52 of the Equality Act 2006, in relation to discrimination on grounds of religion or belief in performance of public functions, which simply states, ‘(1) It is unlawful for a public authority exercising a function to do any act which constitutes discrimination.’

It is important to appreciate that the issue of the public provision of GFS has been shrouded in controversy since the House of Lords decision in Amin v Entry Clearance Officer, Bombay [1983] 2 AC 818. In that case, the House of Lords interpreted equivalent provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976 to include only public provision of GFS which correspond to the private provision of GFS. Hence a wide range of ‘purely public’ functions, for example immigration and policing, have been excluded from the operation of the GFS provisions, although more recent case law has sought to limit this exception.

For example, it could be argued that the NI Council for the Curriculum Examinations and Assessment (CCEA) could be seen as a ‘purely public’ body which does not fall within regulation 5 or within regulation 12. Nonetheless, the delivery of the curriculum by an educational establishment might amount to direct discrimination, and certainly harassment, depending upon the manner in which it was presented. It is also disappointing that immigration, defence, tax collection and many aspects of policing appear to be outside the scope of regulations 5 and 12.

Regulation 16: Organisations relating to religion or belief

The most controversial provision is an extensive exception for a wide range of organisations relating to religion or belief. For example, a faith-based organisation such as the Orange Order could argue that it is ‘an organisation the purpose of which is … to advance a religion or belief or … to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief.’ Permissible restrictions which could be applied by faith-based organisations include ‘to restrict the provision of goods, facilities and services in the course of activities undertaken by the organisation or on its behalf or under its auspices; or … to restrict the use or disposal of premises owned or controlled by the organisation.’ So also regulation 16(4) permits ‘a minister (a) to restrict participation in activities carried on in the performance of his functions in connection with or in respect of an organisation to which this regulation relates; or (b) to restrict the provision of goods, facilities or services in the course of activities carried on in the performance of his functions in connection with or in respect of an organisation to which this regulation relates, in respect of a person on the ground of his sexual orientation.’

These provisions are subject to two caveats. First, they cannot be relied on by ‘an organisation whose sole or main purpose is commercial’ (not that the particular activity is or is not ‘commercial’) or educational establishments. Secondly, they are subject to an obscurely worded provision in regulation 16(5) in that a restriction is only lawful ‘if it is necessary to comply with the doctrine of the organisation; or so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion’s followers’. Could, for example, a Catholic adoption agency invoke this provision if it has in the past placed children with gays or lesbians? In any event, courts will have to consider previously unanticipated doctrinal and theological issues. A final provision in regulation 16 also excludes its operation in relation to regulation 5 or 12 cases provisions made ‘on behalf of a public authority under the terms of a contract for provision of that kind made between that authority and an organisation referred to in paragraph (1)’.

Regulations 5(4) and 17: ‘Specific and justified need’. Discrimination: associations and private members clubs

Of course, these Regulations are ‘even-handed’ in that they apply as much to discrimination against straight people as LGBs, for example in access to a gay or ‘gay-friendly’ bar or club. These are the main vehicles for protecting LGB organisations from discrimination claims.

In the same way as employment equality law provides for ‘genuine occupational requirements’, GFS legislation should provide for a ‘genuine service requirement’. The ‘specific and justified need’ exception in regulation 5(4) performs this function. It provides, ‘any act done in affording persons of a particular sexual orientation access to goods, facilities or services to meet the specific and justified needs of persons of that group in regard to their education, welfare or any ancillary benefits.’ For example, the contracting out of LGB specific counselling services by a public authority would be caught by regulation 5 but it is would appear that a requirement that the counselling service should be through an LGB organisation will be protected through regulation 5(4). There is some concern that informal LGB associations might fall foul of the Regulations. It is probable that regulation protects many of these organisations. In any event, even unincorporated associations are also protected by regulation 17, so long as they have a ‘constitution’ and ‘membership’ of at least 25 people.

Judicial review of the Regulations

The legality of the Regulations will remain a subject of conjecture, at least until the autumn of 2007, as an application for judicial review is being pursued against them, partly on issues of the consultation period and partly on issues of the perceived conflict between freedom from discrimination on grounds of SO and freedom of religious belief.

The GB Regulations

At the time of writing, the GB draft Regulations have just been published and are intended to come into effect on 30 April 2007. The main points of contrast with the NI Regulations are that a weaker definition of indirect discrimination is employed and that ‘unintentional’ indirect discrimination is not subject to compensation, a harassment provision is omitted, a complete duty not to discriminate in performance of public functions is included and that provision is given pre-eminence over the provisions on GFS and a defence of acting under statutory authority is included.

Provisions on the liability of the police are specifically included. A specific provision is included to limit an exclusion for adoption and fostering agencies until 31 December 2008.

Conclusion

Hence there are advantages and disadvantages to the adoption of the NI Regulations on the basis of the RRO rather than the ‘religion or belief’ GFS provisions of the Equality Act 2006. However, although it is possible to construct harassment cases on the basis of a direct discrimination claim, the inclusion of a harassment provision, particularly in relation to housing and education, is a positive development sadly not included in the GB Regulations.