Response to the consultation on the Northern Ireland Freedom of Conscience Amendment Bill
on behalf of
Northern Ireland Liberal Democrats
LGBT+ Liberal Democrats
The following is the response of the Northern Ireland Liberal Democrats, which was also endorsed by the UK-wide executive committee of LGBT+ Liberal Democtats on 17th February 2015, to the above consultation. In light of the fact that this response is being sent to the headquarters of just one of the Assembly parties and not to a Department as with most public consultations we have also sent copies to the other parties and individuals represented in both Stormont and Westminster.
Question 1 Do you believe that it would be appropriate to amend the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 as proposed in Appendix 1 to ensure that individuals are not put in a position where as a result of this legislation they are forced to choose between either acting in violation of their faith conscience, by affirming same-sex relationships, or losing their livelihood?
The Liberal Democrats believe that nobody should be enslaved by conformity. This consultation sets out only a limited definition of faith conscience and ignores those of faith who are supportive of LGBT members and indeed wish to carry out same-sex marriage. Therefore it is assuming all religious believe conforms to one way of thinking on the issues over sexual orientation and enslaves some faith groups, prohibiting their freedom of religion as an outworking of this clause and other actions taken to prevent greater equality in sexual orientation issues rather than their lessening as this clause lays out.
None of the same sex marriage legislation debated in Westminster, Holyrood or Stormont failed to recognise the fact that faith groups should have the decision in their own hands as to whether to affirm such same-sex relationships. Indeed this clause appears to be primarily, from the narrative that accompanies it, against legislation that the party of the member opposed which actually included an inbuilt conscience clause when being debated before the Assembly. It does not allow a freedom of religious conscience for faith groups who wish to carry out same sex marriages and are supportive of it the same freedom of conscience that it is placing on a narrow definition of “religious conscience”.
The fact that the Bill seeks to append this conscience clause only to sexual orientation regulations shows it is not a full religious conscience clause as it is only targeting one type of equality. Faith is already protected within the Equality Act and faith organisations and their related groups, unless they exist solely for commercial purposes are already exempt from the sexual orientation regulations.
Indeed as well as the exemptions stated in the Equality Act for religious organisations there are also already exemptions for religious organisation from portions of employment and tax law. The formation of law in this country has a long tradition of not impinging on religious organisations to operate in a different way to the rest of civic society.
Question 2 Is it appropriate that goods and services legislation should be applied in such a way that it narrows diversity and choice for service users who wish to access a service in the context of a faith/particular faith ethos?
Unsure (because of the very poor wording of the question)
The wording of this question seems to think that diversity and choice is narrowed for those of faith. As far as we are aware no store or service provider in Northern Ireland is allowed to turn away someone of faith. However, what this clause is seeking to do is allow people of a particular faith ethos to turn away people because of their same sex behaviour or belief in sexual orientation equality. Therefore the narrowing of diversity or choice is going to come if this clause impacts upon the Equality Act, something that does not currently exist.
The wording to allow the right to refuse the provision of goods, facilities or services that endorse, promote or facilitate behaviour or beliefs that conflict with strongly held religious beliefs is too wide an area with lack of clarity. Despite protestations from the author of the consultation’s explanation there are situations that this can be used as a means to discrimination.
The clause currently acts to narrow diversity and choice and will lead to an even further narrowing of diversity and choice, possibly even to the point of adverse impact on those it claims to be helping. By only allowing one type of conscience the right to determine what behaviour and beliefs it can refuse it is throwing the equality and protections open to every type of conscience which could lead to discrimination against those of faith, race or allow paedophiles, polygamists or white supremacists the right to exercise their conscience in what they believe to be right.
The reason the Equality Act was created was to ascertain equality to various groups, not the ability for any one of them to gain control over another. Protecting them all from extremes equally. By placing one way of thinking above another as this clause is setting out would be open to challenge from those that do have other world views, something which the courts are likely to uphold.
Question 3 As an example: a recent High Court Judgement means that Northern Ireland’s Catholic adoption agency will now be required to either be willing to act in violation of its faith identity by endorsing same-sex unions and facilitating gay adoption (which means surrendering their faith identity if they wish to continue as a provider), or to cease service provision. Do you think that gay rights are more important than religious rights such that the need to ensure gay couples can access adoption services from every provider should be pressed even when the consequence is to remove from Catholic couples the right to access a Catholic adoption service from anywhere? Is this the right balance or is there a better balance to be struck?
You ask three distinct questions in this question. So we shall have to answer them all separately as the answer, from you list of options, is not the same for all.
No, gay rights are not more important than religious rights but at the same time religious rights are not more important than LGBT rights.
However, when it comes to adoption the most important outcome is not who provides the service but that the child is swiftly moved through the system and placed in a permanent situation as soon as they are released for adoption. The fact that Northern Ireland trails the rest of the UK in both average time and number successfully placed within 12 months is a dire statistic. Maybe this is due to the diversity of provision for the approximately 100 placements a year to such a small population and even smaller potential placement population.
We think we need to look at streamlining adoption services here for the best outcome of the child and not be so hung up about which caring, loving couple, of whatever gender mix, or individual is best placed for the child.
Yes the balance is right to allow both people of faith and same sex couples the right to adopt. There is nothing in the High Court ruling that is cited that will prevent people of faith from adopting. Indeed in the personal experience of one of our members as part of the initial set up of a new scheme, in the past few years, three children were adopted by two couples of faith, from both sides of our community, and those families having gone through the process together are maintaining links. The fact is that some of the children being adopted by same-sex couples will actually being the natural children of one half of the partnership.
But surely the balance must always be on whether a child is placed in a home with parents or a parent that will love it and bring it in a safe and supportive environment.
We are unsure as to whether there is a better balance to be struck as the Adoption and Children Bill has yet to be laid before the Assembly so we do not yet know what balance Northern Ireland is to strike between the issues raised in this question in light of the adjudication of the High Court.
Question 4 How do you think the proposed legislation will impact on human rights?
We need only refer you to Articles 8, 9 and 10 of the Human Rights Act 1998.
Right to respect for private and family life
1 Everyone has the right to respect for his private and family life, his home and his correspondence.
2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Freedom of thought, conscience and religion
1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2 Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Freedom of expression
1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
This clause seems to not allow the right of respect for private and family life of all individuals in Northern Ireland. It is allowing one section of society to judge on the family life of some individuals as being something they can take exception to and as a result to lead to them denying good, facilities and services, this is not respect. It seems to seek to the lift the responsibilities that come with freedom of religion which limitations include the protection of rights and freedoms of others. Similarly in the freedom of expression the exercise of the refusal within the clause fails to protect the reputation and rights of others.
As mentioned in question 2 the wording in too vague to ensure that discrimination of LGBT customers or clients will not occur either before or during access to goods, facilities or services. Behaviour is also too inclusive a term and may range from holding hands, kissing or acting flirtatiously something that mixed sex couple may well be free to engage in within the same setting.
Also in a nation obsessed from symbols does the wearing of a rainbow flag label badge, or pride t-shirt fall within promotion? Something that an individual may not even have consciously thought about but someone with “strongly held religious beliefs” under this wording could take exception to.
Question 5 How do you think the proposed legislation will impact on equality of opportunity?
By opening up the Equality Act to conscience objection a whole can of worms can be opened and other forms of conscience will demand the same right to opt out of the Equality Act in part as this is doing. The end result would be no protection under the equality and much of our laws will be unenforceable once people claim their conscience allows them to take whatever course of action they choose.
The potential is also there that if introduced the right of individual conscience could be cited as a defence in a court of law on matters probably not intended by the drafter of the motion. With the wording of this bill it may prove difficult for a prosecutor to successful retort this claim as individuality of conscience would have been unleased into the realm of defence against actions undertaken.
As pointed out in the answer to question 4 regarding the Human Rights Act with the freedoms that the people of this nation have fought so hard to defend and protect through the years and two World Wars come responsibilities. Those responsibilities do not allow us to treat those with whom we have a different stand point to as inferior. Nor those that do not fit into our worldview norm. If we do we are treading unto a slippery slope such as the Cultural Revolution in China, the pogroms of Russia, the ethnic cleansing of the Balkans. Or the development of a supremacist way of viewing an elite such as in Germany in the 1930s and 40s.
Question 6 Do you have any comments on the likely cost / financial implications of the proposed legislation?
In question 5 we mentioned the fact that numerous challenges from people of consciences not covered by this conscience clause will probably result. As these would have to be challenges through legal channels the costs in legal fees alone will probably be substantial. Protecting one type of conscience in a pluralist society could lead to all manner of law suits against all manner of decisions made by the Northern Ireland Assembly, when it contravenes a different vision of conscience.
In light of the many court decisions that DUP ministers have lost in terms of equality and potentially opening the NI Assembly to the expense that has been accrued there while they are looking to tighten the budget is not fiscally sound.
Question 7 Do you have any other comments on the proposed draft legislation? Would you suggest any further amendments?
Making a clause 16A when clause 16 relates to faith bodies (ie churches and charities thereof) when the provisions deal mainly with goods, facilities and services which come in clause 5 is sloppy legislative drafting and misplacing of the concerns. The fact that this claims to be about freedom of conscience for people of faith, yet is solely attached to sexual orientation regulations and not to other issues that people may have religious conscience objection to shows it up as clearly anti-LGBT and not pro-faith. Especially as those faith groups that are supportive of LGBT rights and same-sex marriage have so far not had their freedom of faith recognised in Northern Ireland.
The examples used, in the narrative of this consultation as to what the clause would and would not apply to seem far from the realities of life for most LGBT people in Northern Ireland. The issue of accommodation in a B&B could for example be expanded to include landlords or mortgage providers. Would a Christian landlord or mortgage provider for example be allowed to turn out an LGBT person because allowing them to use their service or accommodation would be facilitating same sex behaviour? Some taxi drivers in Belfast have already been known to turn out young LGBT couples on their way home from the City Centre to Elms Village because of their “behaviour” this would be allowed as a result of the clause, but is putting public safety at risk.
The long overdue and long promised sexual orientation strategy would surely have provided a framework within which such issues should have been addressed. The failure of OFMDFM to produce and implement this document after almost a decade since it was first raised has led to uncertainty within the LGBT community.
Therefore, instead of pursuing this needless piece of discriminatory legislation we call upon the DUP to call on OFMDFM to publish the Sexual Orientation Strategy by the end of this year.
Membership and Policy Officer
Northern Ireland Liberal Democrats
Executive Committee Member
LGBT+ Liberal Democrats