Thursday, 22 March 2007

Sexual Orientation Regulations - Lords Vote

Yesterday marked the last stage of a very long process by which, on 30 April, gay, lesbian and bisexual people will receive equal protection to that other members of the community enjoy in the provision of goods and services.

As might have been expected, from the different incidents that peppered the troubled route of the Sexual Orientation Regulations since they were proposed, yesterday was a climactic day. There had been a build up in the past few days as the regulations were approved by MPs. The first salvo of the day took place during Prime Minister Question Time in the House of Commons, when the Tory MP William Cash put a question to Tony Blair regarding the ethos of the Regulations and the procedure leading to their approval.

Throughout the afternoon, while the House and the rest of the world was concerned with the big parliamentary and political event of the day, a demonstration (and possibly even two) was taking place outside the Palace of Westminster (Ekklesia and PinkNews have reports on this).

Later in the day, as the House of Lords was getting ready to vote on the regulations, a "prayer vigil" organised by the Lawyers' Christian Fellowship gathered to ask god for a miracle. Andrea Minichiello Williams, the organisation's Public Policy Director and Rev. George Hargreaves (who had appeared in an orange boiler suit at the January demonstration) were both in attendance.

Neither demonstration were very well attended. I have no information about the possible third one. The call to attend it was link to a truly disgusting video which had been posted on YouTube two days ago but has now been removed.

The House of Lords' vote was preceeded by an intervention by Baroness Andrews, the Parliamentary Under-Secretary of State, Department for Communities and Local Government who summed up the process which had been followed by the Regulations since their introductions, before responding to the major arguments which have been levied agains the Regulations.

I have indexed an edited version of her speech for easier reference below:
Religious Freedom
Schools and Education
jump to the rest of the post

The case for new protections on grounds of sexual orientation and the process by which those protections would be brought into force was agreed upon in this House during the passage of the Equality Bill in 2006. The reason why this House decided on the inclusion of a regulation-making power, rather than including provisions on the face of the Equality Act, was to acknowledge the depth and range of sensitivities evoked, and precisely to allow time for extensive consultation on the scope and shape of the new protections.

We were right to do so. Our consultation has been extensive. We launched Getting Equal last March, to which there were 3,000 responses. We were right to take extra time to consider those responses and the range of opinion that they reflected; but we also committed ourselves on 19 October to bringing the regulations into force this April, alongside similar provisions on grounds of religion or belief.

The sensitivity of the issues raised by this legislation, particularly the nature of the debate on the role of faith-based adoption societies, meantthat 7 March was the earliest possible date for the introduction of the regulations. We published our response to the consultative document on the same date. The regulations were subsequently re-laid to take on board the technical drafting comments from counsel to the Joint Committee on Statutory Instruments, but there was no impact on the policy or substance of the regulations.

The JCSI has now completed its scrutiny of the regulations and has approved them. The Joint Committee on Human Rights has reviewed the principles on which the Northern Ireland regulations were constructed—principles which are identical to the GB regulations—and endorsed the approach in its report. Those regulations were extensively debated and carried in this House on 9 January.

In terms of the parliamentary process, therewas a debate on the voluntary adoption sector on21 February in the other place in Westminster Hall, and the decision that the regulations should be taken appropriately in Committee was also agreed between the three main parties. Perhaps I may suggest that few regulations have been subject to more intense or inclusive public scrutiny, while observing due parliamentary process.

[...] It is gratifying that the principle of legislating inthis area was supported by almost 97 per cent of responses to the consultation.[...]

Equally, many of the representations received have confirmed the need for a religious organisation exemption to provide people with the necessary space and freedom to act in accordance with the basic doctrines of their faith. Of course that must be so. Of course we agree. It is for that reason that the Government have provided an exemption for religion or belief organisations, and those acting under their auspices, where that is necessary to avoid conflicting either with the doctrine of the organisation or the strongly held beliefs of a significant number of a religion’s followers.

But where religious organisations choose to step into the public realm and provide services to the community, either on a commercial basis or on behalf of and under contract with a public authority, that surely brings with it a widersocial responsibility to provide those services for the public as they are, in all their diversity, and not to pick and choose who will benefit or who will be served.

The principles on which this approach is constructed are the same as those that underpin the Northern Ireland regulations, which have received the positive endorsement of the Joint Committee on Human Rights. Perhaps I may quote from that report. It states:
“Nobody is required by the Regulations not to have beliefs about the morality of different sexual orientations, or its compatibility with the tenets of one's religion, or punished or subjected to any other disadvantage for having such beliefs. In our view, the prohibitions on discrimination in the Regulations limit the manifestation of those religious beliefs and that limitation is justifiable in a democratic society for the protection of the right of gay people not to be discriminated against in the provision of goods, facilities and services”.
Religious Freedom

Let me be clear about a number of points around the application of the regulations, particularly with regard to their impact on religious liberty and try to lay to rest, I hope, some of the worries that were raised in the Northern Ireland debate and were rooted in misunderstandings. The freedom of a person to observe the teachings of their religion is not impaired, nor is their religious liberty compromised as a result of these regulations.

The regulations will not make it unlawful for a church, a mosque or a temple to refuse membership of its congregation to a lesbian, gay or bisexual in accordance with its religious doctrine. Regulations will not force a priest to bless a same-sex couple. A minister of religion will not be open to litigation should he explain to a lesbian, gay or bisexual person, in the appropriate terms, why he cannot admit a practising homosexual to his congregation. It is untrue, despite what the Lawyers’ Christian Fellowship has suggested, that the regulations adopt the approach in law that the right to a homosexual lifestyle should take precedence over the right tolive a Christian lifestyle. Our regulations uphold the rights of all. Perhaps I may take this opportunity to remind the House that parallel protections on grounds of religion and belief will be brought into force on 30 April. Nor will providers have to tailor their services to appeal to lesbian, gay or bisexual people. All the regulations require is equality of access to existing services with regards to sexual orientation.

The regulations do not affect fundamental freedoms. They maintain the longstanding liberty enjoyed by all faiths to observe and practise their faith. They do not provide special treatment for any group in society, but they provide protection from discrimination for individuals when accessing basic goods and services—something which the rest of us can take for granted.

Schools and Education

The issues of religious liberty have been conflated also with issues of educational freedom. Thenoble Baroness, Lady O’Cathain, argues that the regulations will result in litigation over the content of classroom teaching. I have to disagree with her. I make it clear that the regulations will not impact on the subject matter that is taught in schools. The curriculum is a matter for the Department for Education and Skills. In the most extreme parody of the reality, it has been argued that the regulationswill require schools to promote gay rights or homosexuality to children. I thought that we had got rid of that debate when we removed Section 38.

It has been suggested that the regulations will expose schools to legal challenge if they do not use specific books to teach pupils about issues related to sexual orientation. That simply is not, and could not, be the case. Faith groups are content with the current arrangements for how the curriculum is formulated. The regulations will have no impact upon that. Rather, they will apply to what happens in the classroom and will therefore reinforce the principles that are reflected in the existing statutory and non-statutory guidelines. There is no ambiguity. As now, a teacher in any school will still be able to express their personal religious or ethical views on sexual orientation, provided that it is done, as the guidance would express it, in an appropriate manner and within a suitable context. For instance, a teacher will be able to say, “As a Christian, I believe that homosexual practice is wrong” or “The Koran teaches...”

What is unacceptable, however, and caught by these regulations is for a teacher to turn a blind eye to homophobic bullying, to single out a lesbian, gay or bisexual pupil for criticism on the grounds of their sexual orientation, to make a child feel that the school is not a place for them or that they will not succeed because they are being judged unfairly. That is the detriment to which Regulation 7(4) refers. The regulations will therefore impact upon how education is delivered to ensure that a classroom becomes a place where learning and not prejudice can flourish.

The fundamental point is that all schools should already be complying with these guidelines, which govern the curriculum and require that teaching in this area must be delivered in an appropriate way, bearing in mind that schools should promote respect between pupils by safeguarding and promoting the welfare of all of them. The sex and relationship guidelines state that children must be taught in such a way as to be helped,
“to understand difference and respect themselves and others and for the purpose of preventing and removing prejudice”.
I make it clear that schools will not be vulnerable to legal challenge if they simply continue to comply with the existing guidelines. The regulations should make no material difference to classroom teaching. That is why we do not believe that vexatious litigation will result from them. We do not believe that a sustainable case for litigation could be made on the grounds that a school promotes marriage in accordance with its religious ethos and does not actively promote civil partnership.


As this House knows, specific concerns were raised during the consultation period about the impact of the regulations on the work of faith-based adoption and fostering societies. Adoption law is different in Northern Ireland from that in England and Wales, where, since 2002, with the passage of adoption Act, same-sex couples in enduring relationships have been able to adopt children jointly.

On 29 January, after a thorough and inclusive discussion with leaders of the Roman Catholic and Anglican Churches, gay rights groups and Jack McConnell, who represented the Scottish perspective, the Prime Minister and Secretary of State for Communities and Local Government made it clear that the Government could offer no specific exemption for faith-based adoption and fostering agencies offering publicly funded services. At the same time, it was also recognised that placing a child for adoption is a uniquely serious undertaking. Adoption is a service for children. The best interests of children must be paramount. No one has the right to adopt; it is a long and rigorous process. We have to be sure that it is the right course for each child and for each adoptive and prospective parent. The decision was therefore absolutely right.

However, the Government were deeply aware also of the value and experience of the faith-based adoption agencies, particularly in placing children who are hard to place. On the grounds of principle and pragmatism, we sought to achieve a way forward which maintains the focus on the needs of the child and prevents any disruption to services currently being provided to adoptive parents and children, while requiring, as we must, those publicly funded agencies to operate within the law. It was therefore agreed that a transition period of 20 months wouldbe granted to faith-based adoption and fostering agencies until the end of 2008 to enable them, with help, to plan for and achieve the best possible outcome, whether that might come from partnership arrangements or from using their expertise in other ways.

In the interim, any faith-based adoption or fostering agency wishing to take advantage of the transition period will have to refer same-sex couples to other agencies which they believe are able to assist. We know that this is challenging, which is why, to assist the process, the Prime Minister announced that he would commission an ongoing, independent assessment of the issues that agencies would need to address in the transition period. We want those services to continue. They are much valued, and we want them to be retained and developed as best they can.

The assessment process will be conducted by an independent adoption expert, supported by a panel with expertise in child welfare and adoption. The team will be asked to monitor, support and report on progress towards adapting to the new regulatory regime in the context of wider reforms to adoption services that are already under discussion.

It is heartening that the British Association for Adoption & Fostering has stated that,
“we are pleased the government has carefully considered the intricacies of this sensitive issue... and believe this package should lead to a sensible solution”.
We recognise that this is a complex debate, which exposes the deepest feelings, but, at all times, we have regarded the interests of the child as paramount. In this, we have the recognition of Cardinal Cormac Murphy-O’Connor, who noted and welcomed,
“the Government’s expressed desire that the experience and excellent work of our agencies is not lost, especially for the benefit of needy children”.
This was followed by a speech by Baronness O’Cathain who had tabled an amendment that would have effectively killed the Regulations. She didn't seem to have listen much to what had just been said. Several other speakers followed the majority of which were against the Regulations but some were in favour.

Baroness Howarth of Breckland said:
My Lords, I speak without a prepared speech but with a heavy heart. As a Christian woman, I find this an extraordinarily difficult and distressing debate. It is distressing because we are not really prepared to face the fundamental issue. I have listened to speeches in which noble Lords have said, “We respect gay people, but...”. The issue is not about rights; if it were, we would not be having this debate. It is about whether noble Lords accept gay people as equal human beings.

Two hundred years ago, William Wilberforce made a speech in Parliament that freed black people to be equal human beings. I hope that this evening your Lordships will vote for these regulations.
Lord Alli's invention was also very much to the point.

Just before ten o'clock the Minister spoke again in response to what had been said. Then, at 10.09 pm, "on question, whether the said amendment shall be agreed to, their Lordships divided: Contents, 122; Not-Contents, 168. Details of the vote can be seen here.

You can read reactions to the vote here.

To read my (growing number of) previous posts on the subject, please click here or on "Sexual Orientation Regulations" in the right hand menu.

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