High Court of Justice in Northern Ireland Queen's Bench Division Decisions

The third intervener, the Equality Commission for Northern Ireland was established by Section 73 of the Northern Ireland Act 1998 and took over the functions formerly exercised by the Fair Employment Commission for Northern Ireland, the Equality Opportunities Commission for Northern Ireland, the Commission for Racial Equality for Northern Ireland and the Northern Ireland Disability Council. Mr Wolff appeared for the Equality Commission.

The fourth intervener, the Coalition on Sexual Orientation ("COSO"), is a coalition of member organisations representing the lesbian, gay, bisexual and transgender community in Northern Ireland and is a non profit company limited by guarantee. The member organisations include Gay and Lesbian Youth Northern Ireland, Gay Helpline – Cara Friend, the Gay Police Association Northern Ireland, the LGBT Branch of the National Union of Students – Union of Students in Ireland, the LGBT Branch of Unison Northern Ireland and Northern Ireland Gay Rights Association and also has an association with the Lesbian and Gay Christian Movement. Dr McGleenan appeared for COSO.

The Regulations.

"A. Under the harassment provisions, Catholic teachers, volunteers, staff, or priests in schools, youth clubs, parishes, St Mary's University College or university chaplaincies who seek to present the Catholic Church's teaching on sexual orientation, marriage and the family could be subject to claims of harassment on the basis of `violating the dignity' of persons with a homosexual orientation who are present or `creating an intimating, hostile, degrading, humiliating or offensive environment". This scenario becomes particularly problematic when, as is often the case, the person making the presentation of Catholic doctrine is doing so by invitation and outside of a Catholic institution, or during a church organised course or event which is open to the general public and held in a non church building.

B. The likelihood of such claims is heightened when in the context of maintaining an environment consistent with the ethos of a Catholic institution, the management or staff of that institution take preventative or proactive action in support of that ethos which may be regarded by a person with a homosexual orientation as either harassment or indirect discrimination. For example, if the management of St Mary's University College, in the interests of maintaining the Catholic ethos of the institution and thereby upholding the teaching of the church, were to issue a directive forbidding the Students' Union, of say an affiliate of the Union of Students of Ireland (USI) from inviting a gay and lesbian lobby group supported by the USI to make a presentation to students of the college, the management may be subject to an action under the regulations. The same might apply if the management of the college removed posters within the college grounds promoting such an event. Parallel scenarios could easily be multiplied for Catholic schools, youth clubs and parishes. The regulations have the potential to become particularly problematic in terms of actions taken by the management of a Catholic school, youth club or chaplaincy in the interests of the ethos of the institution, in response to displays of physical affection and intimacy by a homosexual couple over the age of consent, even if such actions would also have been taken in response to similar behaviour by a heterosexual couple. The scale of the services provided by the church to young people in second and third level education as well as youth organisations is such that this could become a significant source of such actions, especially if pursued in organising a coordinated fashion by a lobby group. This opens up the real possibility of Catholic staff being harassed because of their religious belief.

C. As indicated earlier in this submission, it is not clear whether in giving an explanation, based on the magisterial teaching of the Catholic church, for a lawful action taken under the exemptions provided for the ministers of religion, the explanation itself could become the source of a claim for harassment.

D. A potential problem arises in respect of access sought by same sex couples, whether civilly registered or not, to marriage and relationship counselling courses offered by Accord or Diocese and Family Ministry Services. Acceptance of same sex couples for relationship counselling on the same terms as married couples would be in contravention of the doctrinal principles by granting public and de facto equivalence to a same sex union. Yet, if the Catholic agency, in compliance with its doctrinal position, was to decline such services to a same sex couple they may become subject to an action on the basis of the current regulations, either on the basis of the refusal to provide the service and/or on the basis of the explanation given for such action.

E. A similar problem arises in relation to adoption placement and access to parenting courses run by the Catholic Church related institutions. If a Catholic adoption agency was to consider a same sex couple as a potential adoptive couple, on the same terms as a married couple, this would be in contravention of the doctrinal principles. As the court will be aware, the political debate around the parallel legislation to be introduced in Britain has already conceded that the consequence of the legislation is the likely closure of Catholic adoption agencies. A similar principle applies in regard to the increasingly likely situation whereupon a same sex couple will seek to be accepted on a parenting course run by a church based agency, or even as trainee volunteers to work in support of a family ministry programme. Again, in each of these cases, both the refusal to allow participation, on the basis of implying equivalence, as well as the explanation for the action, could give rise to court action under the regulations.

F. Given the high number of youths and other groups using church owned halls and facilities to host their events, situations may arise where such groups will organise activities or permit behaviour which, in terms of the doctrinal position of the church, the church management of such facilities, in the interests of protecting the ethos of their organisation, may feel it necessary to withdraw permission to use the facilities or to direct the manner in which they are being used. It is possible to envisage situations where this may give rise to actions under the legislation.

G. Should a same sex couple seek to be placed in a Catholic nursing home on a shared room basis, or one party explicitly seeks to make a conjugal visit to their resident partner and this was forbidden by the management of the Catholic institution on the basis of the doctrinal position it is foreseeable (as in F above) that litigation could similarly result.

H. In relation to Catholic bookshops, it is possible to envisage a situation in which a Catholic bookshop manager is asked to sell some books, videos and other resources which are incompatible with the doctrinal position set out above and in refusing to do so becomes subject to an action under the regulations on the basis either of the refusal to do so or as a result of the doctrinal explanation offered for such results. Similarly in the same bookshop persons could bring proceedings under the regulations founded on an asserted affront to dignity arising from the contents of the morality or family life sections of the bookshop."

The grounds for judicial review.

(a) OFMDFM in breach of its duty to act in a procedurally fair manner and/or in breach of the applicants procedural legitimate expectations failed to properly consult interested parties about the content of the Regulations and in particular (but without prejudice to the generality of the foregoing) did so in the following ways:

(i) Failing to allow sufficient time for the consultation period;

(ii) Failing to allow the standard minimum period of 12 weeks for the consultation period;

(iii) Providing for the consultation period to fall during a period when many organisations would not be aware of the consultation exercise;

(iv) Initiating a consultation exercise when the proposals were no longer at a formative stage; and

(v) Consulting upon proposals which are fundamentally different from the Regulations in their current form in regard to the provisions relating to harassment.

(b) OFMDFM failed to take into account (or gave manifestly insufficient weight to) the consultation responses so that it breached its public law obligation to conscientiously take into account the product of consultation before finalising the drafting of the Regulations.

(c) The Regulations are necessarily inconsistent with and in violation of the rights of the applicants under Articles 9, 10, 14 and/or 17 of the European Convention ("the Convention") and/or Article 2 of the First Protocol to the Convention by virtue of representing infringements of those rights which are neither proportionate nor necessary in a democratic society and are accordingly in breach of OFMDFM's obligations under Section 6 of the Human Rights Act 1998 and ultra vires by virtue of Section 24 of the Northern Ireland Act 1998.

(d) The Regulations discriminate against a person or class of persons on the ground of religious belief and for this reason also are ultra vires by virtue of Section 24 of the Northern Ireland Act 1998.

(e) OFMDFM has erred in law and/or has misdirected itself in relation to the nature and effect of the Regulations and in particular has erred in considering that the effect of the Regulations will be such as to "bring protection from sexual orientation discrimination into line with existing legislation that prohibits discrimination on the grounds of … religious belief (and) political opinion."

(f) OFMDFM has erred in law and/or misdirected itself in the following further matters:-

(i) By purporting to treat discrimination on the grounds of sexual orientation (as a state of being) in a manner different from discrimination on the grounds of religion when such an approach is neither justified nor permissible in law;

(ii) By considering that it was constrained in determining the length of the consultation period in relation to the Regulations;

(iii) Keep pace with the then "Great Britain timetable for equivalent legislation" (which represented misdirection or an irrelevant consideration).

(iv) By considering that the nature and effect of the Regulations would be such that discrimination on the grounds of marriage would be permissible under the Regulations; and

(v) By accepting legal advice that "the Government could potentially leave itself open to legal challenge for not including (harassment) protection, when the protection existed for other areas and was well defined in Northern Ireland's anti discrimination legislation."

Second, breach of the applicants' rights under the European Convention on Human Rights.

Third, the respondent's misunderstanding of the nature and effect of the Regulations.

Fourth, breach of Section 24 of the Northern Ireland Act 1998 in relation to the competence of OFMDFM to make the Regulations.

(1) Consultation

- legitimate expectation of adequate consultation.

- the duty to consult properly.

- consultation on the harassment provisions.

"4.13 The Employment Equality (Sexual Orientation) Regulations (Northern Ireland) 2003 make harassment unlawful on the grounds of sexual orientation in the workplace and in institutions of further and higher education. Harassment is defined as where one person's unwanted conduct violates another's dignity, or creates an intimidating, hostile, degrading, humiliating or offensive environment for that person.

4.14 There is, therefore, existing provision within Northern Ireland's anti discrimination legislation covering protection on the ground of harassment. However, during the passage of the Equality Act 2006, Members of the House of Lords argued strongly that, while the concept sat more easily within the employment sphere, it was extremely difficult to define what constitutes violation of dignity in terms of goods or service provision. The importance of balancing an individual's basic human rights to freedom of speech and expression with the need to protect individuals from acts that violate their dignity is an important element in this debate.

4.15 On the basis of the complex arguments put forward we are minded to accept that it is not appropriate to legislate for harassment within these Regulations. We feel that the future Single Equality Bill will provide a more appropriate vehicle to consider harassment in terms of goods, facilities and services, and allow more time to deal with the complex arguments that have been put forward. We would, however, welcome respondents' views on whether they feel harassment should be included now and their reasons for doing so."

- harassment generally.

"Harassment shall be deemed to be a form of discrimination within the meaning of paragraph 1, when unwanted conduct related to any of the grounds referred to in Article 1 takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context the concept of harassment may be defined in accordance with the national laws and practice of the Member States."

"(3) A person ('A') subjects another person ('B') to harassment in any circumstances relevant for the purposes of any provision referred to in these Regulations where, on the ground of sexual orientation, ('A') engages in unwanted conduct which has the purpose or effect of –

(a) violating B's dignity; or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(4) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) (of paragraph (3)) only if, having regard to all the circumstances, including, in particular, the perception of ('B'), it should reasonably be considered as having that effect."

[38] The applicants note that the European definition uses the conjunctive "and" after the reference to violating the dignity of a person whereas the Regulations use the disjunctive "or". Further the applicants note the words of Regulation 3(4) which are not found in the European version. In addition the applicants note that particular regard is to be had to the perception of the victim.

"The width and vagueness of the definition of harassment in the Northern Ireland Regulations give rise to a risk of incompatibility with both freedom of speech in Article 10 ECHR and freedom of thought, conscience and religion in Article 9. The potential interference with freedom of speech arises because people may feel inhibited from saying something if they fear that a person may perceive it is a violation of their dignity or is creating an offensive environment. The potential interference with freedom of religion and belief arises because explanations of sincerely held doctrinal beliefs might be perceived as violating a person's dignity or creating an offensive environment. The exemption for religious organisations in Regulation 16 of the Northern Ireland Regulations does not provide an exemption for harassment so a person who invokes the exemption in that regulation risks being caught by the harassment provision if they explain their reasons for acting. As was explained in the debates on the Northern Ireland Regulations, where a person carrying out an exempt activity seeks to explain why a person has been excluded from that activity, there is a risk that the person being told will regard the explanation as violating their dignity or as offensive and therefore claim that they have been harassed."

(2) The European Convention.

"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 in accordance with the law and necessary in a democratic society in the interests of national security, public safety or the economic wellbeing 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."

Article 14 provides for the prohibition of discrimination as follows:-

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."

[45] The applicants claim that the Regulations involve breaches of rights under Articles 9, 10, 14, 17 and Article 2 of the First Protocol to the European Convention. Article 9 provides for freedom of thought, conscience and religion as follows:-

"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."

Article 10 provides for freedom of expression as follows:-

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and 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."

Article 17 provides for the prohibition of abuse of rights as follows:-

"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention."

Article 2 of the First Protocol provides for the right to education as follows:

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."

- manifestation of religious belief.

"31. As enshrined in Article 9 freedom of thought, conscience and religion is one of the foundations of a `democratic society' within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to `manifest (one's) religion'. Bearing witness in words and deeds is bound up with the existence of religious convictions.

According to Article 9, freedom to manifest one's religion is not only exercisable in community with others, `in public' and within the circle of those whose faith one shares, but can also be asserted `alone' and `in private'; furthermore, it includes in principle the right to try to convince one's neighbour, for example through `teaching', failing which, moreover, `freedom to change (one's) religion or belief', enshrined in Article 9, would be likely to remain a dead letter."

- freedom to impart information and ideas.

- the role of this Court in the challenge to the operation of the Regulations.

- interpretation of regulation 16(8).

"This regulation shall not apply where an organisation-

(a) makes provision of a kind referred to in regulation 5; or

(b) makes provision of a kind referred to in regulation 12,

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)."

- teaching and the school curriculum.

- the general approach to the remaining Regulations

- interference with the manifestation of religious belief.

-limitations prescribed by law.

- proportionality.

"Whether (1) the legislative objective is sufficiently important to justify limiting a fundamental right;

(2) the measures designed to meet the legislative objective are rationally connected to it; and

(3) the means used to impair the right or freedom are no more than is necessary to accomplish the objective."

"First the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary unfair or based on irrational consideration. In short, they must be rationally connected to the objective.

Secondly, the means, even if rationally connected to the objective in this first sense should impair `as little as possible' the right or freedom in question. Thirdly, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of "sufficient importance".

(i) Sufficiently important objective – the law must pursue an objective that is sufficiently important to justify limiting a Charter right.

(ii) Rational connection – the law must be rationally connected to the objective.

(iii) Least drastic means – the law must impair the right no more than is necessary to accomplish the objective.

(iv) Proportionate effect – the law must not have a disproportionately severe effect on the person to whom it applies.

"In effect the court will consider three criteria in determining whether or not the limitation is permissible in the sense of not being shown to be arbitrary or excessive. It will ask itself whether:

1. The legislative objective is sufficiently important to justify limiting a fundamental right.

2. The measures designed to meet the legislative objective are rationally connected to it.

3. The means used to impair the right or freedom are no more than is necessary to accomplish the objective."

In relation to the third ingredient, minimal impairment, Gubbay CJ stated in Nyambirai at page 76f:

"Under this part of the inquiry into the means by which the objective is attained, the court must weigh the impact of the limit upon the right of the applicant against the importance of the legislative objective. There must be a balancing process. The importance of the objective, the reasonableness of the manner in which it is achieved must be measured against the gravity of the infringement of the protected right. Generally, this involves weighing the significance of the public interest in the limit against the seriousness of the infringement of the private right protected by the Constitution. This is so in this case. One asks is the infringement too high a price to pay for the benefit of the law?"

"Hand in hand with proportionality principles is a concept of 'latitude', which recognises that the Court does not become the primary decision-maker on matters of policy, judgment and discretion, so that public authorities should be left with room to make legitimate choices. The width of the latitude (and the intensity of review which it dictates) can change, depending on the context and circumstances. In other words, proportionality is a 'flexi-principle'. The latitude connotes the degree of deference by court to public body."

(1) The overarching need to balance the interests of society with those of individuals and groups.

(2) The recognition of the latitude that must be accorded to legislative and executive choices in relation to the balance of public and private interests.

(3) The legislative objective being sufficiently important to justify limiting the fundamental right.

(4) The measures designed to meet the legislative objective being rationally connected to it, that is, the measures must not be arbitrary, unfair or based on irrational considerations.

(5) The need for proportionate means being used so as to impair the right or freedom no more than necessary to accomplish the objective, that is, that the measures are the least intrusive, in light of both the legislative objective and the infringed right. The Court should consider whether the measures fall within a range of reasonable alternatives, rather than seeking to ascertain whether a lesser degree of interference is a possibility.

(6) The need for proportionate effect in relation to the detrimental effects and the advantageous effects of the measures and the importance of the objective.

- explaining the orthodox religious belief.

- promotion of homosexuality.

[85] The applicant contents that in the provision of goods, facilities and services, the management of premises and the provision of services by a public authority those who subscribe to the orthodox religious belief on homosexuality will be required to promote that to which they have religious objection. The example offered is that of the Christian printer who would not object to printing material for a person who was homosexual but would object on the grounds of the orthodox religious belief, to being required to print material that promoted homosexuality. The applicants contend that under regulation 5(1) it would be unlawful to refuse to provide such a service on the ground of sexual orientation. Further the exemption for religious organisations under regulation 16 permits the organisation to restrict the provision of services on the ground of sexual orientation but that does not extend to an organisation whose sole or main purpose is commercial.

On the issue of rational connection between the measures and the objective the Court found that the Code prohibited discrimination arising from denial of services because of certain characteristics of the person requesting the service thereby encouraging equality of treatment in the market place and that if the order of the Board went further the order would cease to be rationally connected to the objective of removing discrimination.

On the issue of proportionate means it was noted that service of the public in a commercial service must be considered at the periphery of activities protected by freedom of religion. However the order of the Board could have been less intrusive while at the same time achieving its objectives.

On the issue of proportionate effects the Court stated that if any particular printing project contained material that conveyed a message proselytizing and promoting the gay and lesbian lifestyle and ridiculed Mr Brockie's religious beliefs such material might reasonably be held to be in direct conflict with the core elements of his religious beliefs. On the other hand if the particular printed object contained a directory of goods and services that might be of interest to the gay and lesbian community that material might reasonably be held not to be in direct conflict with the core elements of Mr Brockie's religious beliefs. The order of the Board was qualified to read –

"Provided that this order shall not require Mr Brockie or Imaging Excellence to print material of a nature that could reasonably be considered to be in direct conflict with the core elements of his religious beliefs or creed."

the applicants' examples

First, explanations of the religious belief amounting to harassment under the present Regulations will not arise with the harassment provisions being set aside.

Second, examples of the activities in the context of religious organisations will be protected by the exemption under regulation 16. This will be subject to the qualifications for commercial activity (and consideration of the Brockie approach to commercial activity) and education (to the extent that regulations 9, 10 and 11 apply) and public authority contracts (with regulation 16(8) being limited to provision made under such contracts and not barring the religious organisation generally).

Third, to the extent that the examples may concern activities by those who are not covered by the exemption for religious organisations, such as colleges and halls, a balance of rights will be required. This may involve some realignment of the previous balance between the manifestation of religious belief and sexual orientation. Thus gay groups may have to be accorded a platform along with other groups, all displays of affection may have to be prohibited if there is disapproval of same sex affection, counselling may have to be offered to homosexual as well as heterosexual couples.

Fourth, individuals running the commercial provision of services, such as printers, photographers or booksellers, may find that under a Brockie approach they are not required to undertake activities that could reasonably be considered to be in direct conflict with the core of the orthodox religious belief on homosexuality.

Fifth, agencies that are in effect providing services on behalf of the State, such as adoptions or nursing home places, may have to choose between complying with the requirements of the State or otherwise realigning the manner in which the services can be provided.

"A applies to B a requirement or condition which he applies or would apply equally to persons not of the same sexual orientation as B; but –

(i) which is such that the proportion of persons of the same sexual orientation as B who can comply with it is considerably smaller than the proportion of persons not of that sexual orientation who can comply with it; and

(ii) which he cannot show to be justifiable irrespective of the sexual orientation of the person to whom it is applied; and

(iii) which is to the detriment of B because he cannot comply with it."

(3) Misunderstanding of the Regulations.

(4) The Northern Ireland Act 1998.

(1) A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or Act –

(a) is incompatible with any of the Convention rights;

(b) is incompatible with Community law;

(c) discriminates against a person or class of person on the ground of religious belief or political opinion;

(d) in the case of an Act, aids or incites another person to discriminate against a person or class of persons on that ground; or

(e) In the case of legislation, modifies an enactment in breach of Section 7.

"For the purposes of this Act, a provision of an Act of the Assembly or of subordinate legislation discriminates against any person or class of person if it treats that person or that class less favourably in any circumstances than other persons are treated in those circumstances by the law for the time being in force in Northern Ireland."