Tuesday, 9 December 2014

Paul Givan's Conscience Clause

My first reaction to Paul Givan's Conscience Clause as someone who has drafted amendments to party policy is that he doesn't even know how to amend the existing regulations. Most of what he is proposing relates to provision of goods, facilities and services (which is regulation 5 of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006). Instead he places his amendments under regulation 16 which is organisations relating to faith or belief.

So let us that a look at what he is proposing.

  • deletions
  • additions
  • original
  • notes
He is making paragraph 8

(8) This Subject to paragraph (9), this regulation shall not apply where an organisation —

(a)makes provision of a kind referred to in regulation 5[goods, facilities and services]; or

(b)makes provision of a kind referred to in regulation 12[public authorities]
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).

 (9) Paragraph 8 does not apply to a voluntary adoption agency or fostering agency that
(a) is an organisation of the kind referred to in paragraph (1); or (b) acts on behalf of such an organisation
Paragraph 1 mentioned in (9) (a)
16.  (1)  Subject to paragraphs (2) [where sole purpose is commercial, or in relations to regulations 9,10, 11 {all related to education}] and (8) [see above for the circular nature of this] this regulation applies to an organisation the purpose of which is —
(a)to practice a religion or belief;
(b)to advance a religion or belief;
(c)to teach the practice or principles of a religion or belief;
(d)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.

The after Regulation 16 he wants to insert

Businesses: exception based on religious belief


(1) This regulation applies to a person (“A”) whose sole or main purpose is commercial or anyone acting on his behalf or under his auspices.
(2) Nothing in these Regulations shall make it unlawful  
(a) to restrict the provision of goods, facilities and services; or
(b) to restrict the use or disposal of premises, 
so as to avoid endorsing, promoting or facilitating behaviour or beliefs which conflict with the strongly held religious convictions of A or, as the case may be, those holding the controlling interest in A.
(3) For the purposes of paragraph (2)(b), “disposal” shall not include disposal of an estate in premises by way of sale where the estate being disposed of is—
(a) the estate in fee simple absolute in possession; or
(b) the entire estate in the premises in respect of which A has power of disposal.
 Now there a number of worrying things.

Let us not forget that even faith based commercial enterprises were not allowed under regulation 16 to have been exempt from equality legislation. But from the wording of this commercial enterprises on behave of belief or faith based organisations are not exempt from equality legislation yet Paul Givan is letting bussiness which are not faith based to become exempt.

What can a person, or even just a majority share holder in a business do.

  • Nothing in these regulations shall make it unlawful to restrict the provision of good, facilites and services.
Hang on a second? Nothing shall make it unlawful to restrict the provision of goods, facilities and services. Paul Givan has said that this would not mean that a shopkeeper could refuse to sell apples to a LGBT person. But this wording appears to mean that there is nothing to prevent him from doing so. Goods, facilities and services covers everything that any business.

There is a caveat so as to avoid endorsing, promoting or facilitating behaviour or beliefs which conflict with the strongly held religious convictions.

Now I do have concerns here.

Endorsement was a word that was used in the Ashers case yet only from the McArthurs family who run the company. Nobody who ever eats a cake thinks that the people who make it actually endorse it. But there does become an issue. What is one of the major papers in Northern Ireland has a majority control by someone with deeply held religious beliefs. Would they be within their rights not to cover news about LGBT events, or comments and letters in support of LGBT equality? What if that paper operated online, would they be able to censor debate if it was against their principles as they didn't want to be seen to be endorsing what is said?

Most media does say that the views and comments that they publish are not necessarily those of the publication, but is this a get out for people like them.

Does my wearing of one of my many Pride t-shirts constitute promotion? Does my wearing a rainbow flag badge as some wear a union flag on their label count as promotion? Could I be prevented from eating in a restaurant or be served in a shop under this regulation of promotion if I am seen entering such a store. This all sounds rather Russian and worrying talking about promotion so glibly.

What if a high profile LGBT activist were to turn up for a service from someone. Like me who unlike some of the anonymous homophobes my name would clearly come up as someone who is a high profile LGBT activist through the letters I write, the speeches I have made, my blog and social media. Would serving me potentially with my boyfriend present be considered promotion. Especially if I am openly carrying my Liberal Democrat folder with all its LGBT badges on it.

What about wearing a red ribbon in support of HIV?even though this is not a gay disease, what if the business owner perceives it to be? 

What is meant by facilitating behaviour? If a same sex couple want to go out for a meal together, just the two of them, is serving them at a table counted as facilitating? Could you having booked a table be turned away, even if you do not kiss, cuddle or hold hands on the premises. What about a hotel? Yes we are back to the hotel situation which has already been judged by a high court as being a public service you have to offer the same provision for everyone. What about a landlord? Could a Christian landlord turn out tenants if he thought that his premises were facilitating same-sex activity? This is dangerous ground.

  • Nothing in these regulations shall make it unlawful to restrict the use or disposal of premises.

Also later on in 2 (b) how are you going to determine the disposal of someone's estate. I mean could this mean that certain houses will not be available to be bought by same-sex couples or an LGBT individual if someone has died and stipulates no gays.

But more worrying is the use restriction. As above any space that is not a public space may be off limits to an LGBT couple or group if the owner deems that their very presence is somehow and endorsement, promotion or facilitation of behaviour or beliefs.

Now I terribly sorry to tell my Givan this. My existence is an endorsement that being gay and Northern Irish is fine, there is nothing wrong with that. Sometimes I have to talk to others over a coffee or a meal about issues that they and I are facing, this may well be promotion of that same belief. I also go on dates with boyfriends. Now in winter time I don't to hang around in car parks or parks, besides I'm 45 and enjoy good food, a variety of drinks, the arts and sport. So I will probably want a boyfriend who enjoys a lot of the same things and most of these take place indoors. So I'm going to have to use premises owned by other people.

One final thing. You will notice that the Equality Act (Sexual Orientation) Regulations only came into being in 2006. We have only for 8 years as LGBT people in Northern Ireland had some protection as to accessing of goods and services. Before that anybody could turn us away for any reason, which makes it all the more disgraceful that Mr Givan has worded this so poorly that all manner of consequences can come from it. Earlier today he was talking about specific cases and tight guidelines, but this is not what he has delivered. 

1 comment:

  1. Its a major fuck up from the party that gave us Iris Robinson.

    My reading is that if this goes through in law, ie that SF dont lodge petition of concern,

    it is only equality (sexual orientation) law that is effected or as Mr Given calls it [enhanced]

    a person who refuses to provide goods/services on faith grounds to gay people would be protected in law,

    but someone who refuses to provide goods/services on faith grounds to unmarried straight people, would still not be protected by the law.

    what's your take on that