Exemptions for religious groups from generally applicable laws are by no means unusual, especially in the field of discrimination law.Footnote ¹ However, exemptions from laws prohibiting discrimination on grounds of sexual orientation have proved particularly controversial. The legality of exemptions in regulations prohibiting discrimination on grounds of sexual orientation in the employment sphere has been the subject of judicial reviewFootnote ² and the scope of those exemptions has also been judicially examined.Footnote ³ The extension to prohibit discrimination on grounds of sexual orientation in the provision of goods and servicesFootnote ⁴ has proved controversial, and case law on the extent of the religious exemption included in the British regulations is awaited.Footnote ⁵ In the meantime, a recent judicial review of the corresponding Northern Ireland regulations,Footnote ⁶ which were enacted prior to the British regulations, may be illuminating.

THE NORTHERN IRELAND REGULATIONS

Like the British regulations, the Northern Ireland regulations outlaw direct and indirect discrimination and victimisation on grounds of sexual orientation in the provisions of goods and services. Unlike their British counterparts, the Northern Ireland regulations also outlaw harassment. Both sets of regulations have various exemptions, including an exemption for ‘organisations relating to religion or belief’.Footnote ⁷ Both provide a purposive definition of the term ‘organisations relating to religion or belief’Footnote ⁸ and state that such organisations may lawfully restrict the provision of goods and services and membership or participation in the organisation on one of two bases. The first is ‘if it is necessary to comply with the doctrine of the organisation’, the second is ‘so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers’. Both regulations state that this exemption is lost if an organisation makes provision with and ‘on behalf of a public authority under the terms of a contract’.Footnote ⁹ Given these similarities, the recent judicial review into the making of the Northern Ireland regulations may shed light upon the British situation.

GROUNDS OF REVIEW

The enactment of the Northern Ireland regulations proved controversial.Footnote ¹⁰ A number of Christian organisations and charitiesFootnote ¹¹ sought a judicial review of the regulations on four grounds, contending that:

1. i. The consultation prior to the making of the regulations was insufficient;

2. ii. The regulations breached their rights under the European Convention on Human Rights (ECHR);

3. iii. The Office of the First Minister and Deputy First Minister misunderstood the nature and effect of the regulations; and

4. iv. The regulations were ultra vires as they represented a breach of section 24 of the Northern Ireland Act 1998.

In the Northern Ireland High Court, Weatherup J considered these grounds in turn.Footnote ¹²

In relation to the first ground, consultation, the applicants contended that the Office of the First Minister and Deputy First Minister failed properly to consult interested parties about the content of the regulations. Weatherup J noted that, although there were no special circumstances giving rise to a public law duty to consult any of the applicants, the fact that there was consultation meant that the respondents were under a duty to consult properly. Although the consultation period was shorter than that usually recommended and included the main holiday season, Weatherup J noted that this duty to consult properly had not been breached: the general guidanceFootnote ¹³ had been taken into account and such guidance was not to be applied rigidly. The consultation period was adequate in the circumstances.

However, Weatherup J found that the consultation on the harassment provisions merited separate consideration. The consultation document had stated that the respondents were ‘minded to accept that it is not appropriate to legislate for harassment in these Regulations’ and that this should be left for the future Single Equality Bill.Footnote ¹⁴ Nonetheless, despite this, harassment provisions were included in the final regulations. Although the consultation paper did invite views and reasons for the inclusion of the harassment provisions, the applicants contended that the inclusion of such provisions meant that the regulations were fundamentally different from the scheme envisaged in the consultation paper and therefore were unfair. Weatherup J agreed: ‘it was unfair to the consultees who agreed with the proposed deferral of harassment to induce them not to address their objections to the respondent and then to introduce harassment provisions’.Footnote ¹⁵ Moreover, the applicants contended that the harassment provisions were unlawful in any event for being too widely drawn, extending their reach beyond that of discrimination: while EU law establishing equal treatment in employmentFootnote ¹⁶ defined harassment as engaging in unwanted conduct which has the purpose of violating the victim's dignity and creating an intimidating, hostile, degrading or offensive environment for the victim, the regulations had replaced the conjunctive ‘and’ with the disjunctive ‘or’. Furthermore, the regulations went beyond the Directive in stating that the test of whether conduct had this purpose was one of reasonableness, taking into account ‘in particular’ the perception of the victim. These concerns were shared by the Joint Committee on Human Rights, which expressed the concern that the wideness of the provision and the vague definition gave rise to a risk of incompatibility with Articles 9 and 10 of the ECHR.Footnote ¹⁷ Weatherup J held that the absence of proper consultation on the harassment provisions, coupled with concern as to their extended reach meant that the harassment provisions in the regulations would be quashed.

Weatherup J's decision in relation to the harassment provisions coloured the remainder of his judgment. In relation to the second ground, the European Convention on Human Rights, the applicants contended that the protection afforded to sexual orientation in accordance with the right to respect for private life under Article 8 of the Convention outweighed the protection afforded to the manifestation of religious belief under Article 9. However, the respondents contended that the court should not examine the regulations in the abstract and that such challenges would be fact-specific and should be determined on a case-by-case basis as challenges were made by means of court proceedings. Weatherup J accepted the contention of the respondents but noted, somewhat ambiguously, that it would be ‘possible to outline the general approach that applies to consideration of alleged breaches of rights under the European Convention which might give indications as to how particular instances might be dealt with, while at the same time illustrating the fine dividing lines that may be drawn in particular cases depending on all the circumstances of a particular case’.Footnote ¹⁸ Although Weatherup J considered this point in some detail, he did not accept any generalised complaints concerning the regulations. However, he did reach some particular conclusions, such as finding that the regulations do not apply to the school curriculum. With regard to Article 9, he noted that, although the right to manifest religion or belief was engagedFootnote ¹⁹ and the introduction of the regulations would result in ‘instances of material interference’ with the right,Footnote ²⁰ this might be justified under Article 9(2): the regulations were ‘prescribed by law’, had the legitimate aim of the protection of the rights of others and were proportionate. This was especially so since many of the specific worries were concerned with the (now-to-be-quashed) harassment provisions. Weatherup J also commented upon the position of religious persons engaged in a commercial activity who wished not to undertake action that promoted homosexuality, such as a printer who sought to refuse to print business cards promoting homosexual publications. He noted that the exemption for ‘organisations relating to religion or belief’ was lost if their sole or main purpose was commercial. He suggested that a different approach, favoured in the Canadian jurisprudence,Footnote ²¹ might be preferable, namely that believers are not entitled to undertake action that promotes that which the essence of their belief teaches to be wrong. He also commented that, where activities were outside the scope of the exemption, ‘a balance of rights will be required’.Footnote ²² These comments, though mere obiter, give some reflection of the myriad of issues yet to be fully resolved and point to the importance of Weatherup J's finding that questions of whether the regulations breach the ECHR are fact-specific and need to be considered judicially on a case-by-case basis.

Weatherup J dealt with the third and fourth grounds in a swifter manner. In relation to the contention that the respondents misunderstood the nature and effect of the regulations, Weatherup J observed that these points now added nothing to the debate in light of his findings regarding the harassment provision and the non-applicability of the regulations to the school curriculum. In relation to the fourth ground, the applicants contended that the regulations were ultra vires as a breach of section 24 of the Northern Ireland Act 1998, which provides that a Minister or Northern Ireland department has no power to perform any act which, inter alia, ‘discriminates against a person or a class of person on the grounds of religious belief’. Weatherup J held that there was no basis for interfering with the regulations relying on section 24, since he was satisfied that the regulations did not treat evangelical Christians less favourably than others.