EQUALITY by lifemate


                                 1 OCTOBER 2009

                     EQUALITY MATTERS IN 2009

                                 Mr Justice Weatherup

 President Obama said recently - ‖A good compromise, a good piece of
 legislation, is like a good sentence; or a good piece of music. Everybody can
 recognize it. They say, 'Huh. It works. It makes sense.'‖

 Lawyers and social policy makers, though, may want a more detailed answer.
 A good piece of legislation, like all the best characters, has a back history,
 perhaps a very stormy one, it has ancestors, it has a wider family, it does not
 just work alone, it works in a social and legal context. Good law develops
 over time, whether in the courts or by renewed Parliamentary discussion.
 This paper is a snapshot of some aspects of equality law in 2009. As equality
 law develops to meet our increased understanding of the problems and to
 meet new challenges we may look at a piece of legislation and be able to say -
 ―Yes, this works. It makes sense today‖.

 What we now regard as equality law emerged out of anti discrimination
 provisions concerned with ensuring equality of treatment for individual
 claimants on specified grounds such as gender or race.          It has family in
 London and Brussels and may also be seen as part of a global initiative to
 tackle problems of inequality. The specific circumstances of Northern Ireland
 gave rise to extra protection on the grounds of religious belief or political
 opinion.   In   addition   to    the   then-standard,   individually-based   anti-
 discrimination model, the Fair Employment legislation also contained the
 additional element of driving forward broad social change by requiring

employers to monitor the composition of the work force. This added element
foreshadowed the introduction of measures to drive forward broader social
change in the areas of gender, race and disability. The protection of
individuals against discrimination on the established grounds of gender or
race or disability are now well established and in principle uncontroversial.
The extension of those grounds to include religion, age and sexual orientation
has been a more recent development. In Northern Ireland individual
protection on the ground of religious belief has been concerned with
community rather than the content of belief. When protection of religious
belief is concerned with the nature of the belief it gives rise to different issues.

It is an international trend that provisions to secure equality of treatment on
specific grounds have in more recent years been reinforced by additional
measures to deal with harassment and the adoption of statutory equality
duties imposed on public authorities to promote equality of opportunity. The
Equality Bill 2009, which does not apply to Northern Ireland, amalgamates
and extends the existing ―single strand‖ duties applicable in Great Britain into
a muti-dimensional positive duty. It also imposes another strategic duty to
have due regard to the need to reduce inequalities of outcome resulting from
socio-economic disadvantage. Further it extends the statutory equality duties
to the need to have regard to matters that include the elimination of
discrimination on the specified grounds. A Single Equality Bill for Northern
Ireland is in the Assembly.

As the grounds for protection and the extent of the statutory equality duties
increase there emerges the increased need to address any conflict that might
emerge between the specified grounds, each with the benefit of the protection
of anti discrimination laws, for example where religious belief clashes with
sexual orientation. Any such clash of protected areas may require more
anxious consideration, not only by policy-makers, but also by the judiciary.

There are a multitude of matters that could be raised in a discussion of
equality so I must necessarily be selective. I hope I may be forgiven for
commencing the discussion by reference to my own decision in the Christian
Institute‘s Application [2008] NI 86. I will take that case as a foundation from
which to develop three themes for today. The first concerns the clash of
protected rights, particularly religious belief and sexual orientation.     The
second concerns the scope of harassment as an element of discrimination.
The third concerns the development of wider statutory equality duties.

                    The Christian Institute’s Application.

The Christian Institute was one of seven religious organisations that
challenged the making, by the Office of the First Minister and Deputy First
Minister, of the Equality Act (Sexual Orientation) Regulations (Northern
Ireland) 2006 under powers contained in the Equality Act 2006. The
Regulations prohibited discrimination and harassment on the ground of
sexual orientation in relation to the provision of goods and services, the
management of premises, the provision of education and public functions.
The grounds of challenge included inadequate consultation in the making of
the Regulations and a breach of the right to freedom of religion under Article
9 of the European Convention which includes the right to manifest religion or
belief in worship, teaching, practice and observance. The religious belief in
question was what was described as the orthodox Christian belief that
homosexual practice is sinful. It was thus said to be a breach of the right to
manifest religious belief for the Sexual Orientation Regulations to require the
performance of certain duties that would be inconsistent with worship,
teaching, practice and the observance of that religious belief. The Equality
Commission was an intervener in the proceedings and with the Northern
Ireland Human Rights Commission and the Coalition on Sexual Orientation
were broadly in support of the Regulations. The Northern Bishops intervened
in support of the applicants challenge to the Regulations.

It was held that there had been an absence of proper consultation in relation
to the harassment provisions and accordingly those provisions were removed
from the Regulations.       Further it was held that the operation of the
Regulations would have to be considered on a case by case basis in relation to
individual complaints under the Regulations and not in the abstract.
Accordingly the Sexual Orientation Regulations, other than the harassment
provisions, remain in place and complaints of discrimination on the ground of
sexual orientation will be the subject of legal proceedings in the County

The Regulations sought to achieve a balance between the protection afforded
on the ground of sexual orientation and those holding religious beliefs. The
exceptions in the Regulations include provision that it is not unlawful for a
religious organisation to restrict membership, participation in activities, the
provision of goods, services or activities, or the use or disposal of premises on
the ground of sexual orientation. Nor is it unlawful for a minister of religion,
in the performance of his functions, to restrict participation in activities or the
provision of goods, services or facilities on the ground of sexual orientation.

The concerns of the religious organisations extended to the operation by
religious bodies of bookshops, nursing homes, church halls, adoption
agencies, youth clubs and residential places in a manner that permitted the
organisations not to accommodate homosexual conduct and to the imposition
of restraints on espousing the religious belief on homosexual conduct.

                            Clash of Protected Rights.

Some of the literature contends that the protection of religious belief is not
warranted to the same extent as would apply to gender or race or disability. It
is said that religion is not so much a personal characteristic as an individual
belief and choice. Some religious beliefs are not reconcilable with secular
values. On the contrary, it may be argued that requiring the accommodation
of practices or beliefs categorised as ‗religious‘ tends to perpetuate practices
and beliefs that are problematic on equality grounds. Sexual orientation
illustrates this clash. The legislators modified the Regulations protecting
sexual orientation in order to reach some accommodation with the religious
opposition.   While the Christian Institute‘s Application did not seek to
address the individual concerns of the religious organisations there was
nevertheless some discussion of the general approach to the clash of protected
rights involving on one side the prohibition of discrimination on the grounds
of sexual orientation and on the other side the right to manifest religious
belief and in some instances the right to freedom of expression.

There is absolute protection for religious belief and qualified protection of
actions taken to manifest religious belief.      Thus the ‗manisfestation‘ of
religious belief may be lawfully restricted. There is no right to manifest
religious belief at any time and in any place. However any interference with
the qualified right must be significant. If there is interference it must be
justified by the pursuit of a legitimate aim and be proportionate.
Proportionality has been inherited from the European Court of Human
Rights. It recognises the overarching need to balance the private rights of
individuals with the public interest of society and the latitude that should be
accorded to legislative decision makers in relation to the balance of public and
private interests. It requires that restrictions on rights must not be arbitrary,
unfair or irrational and that the measures adopted are within the range of

reasonable alternatives and that there is a proper balance of advantageous
and detrimental effects.

In Ontario Human Rights Commission v. Brockie [2002] Mr Brockie held the
religious belief that homosexual conduct was sinful. He ran a business as a
commercial printer and refused to assist in the dissemination of information
intended to spread the acceptance of a gay or lesbian lifestyle. The Ontario
Superior Court of Justice found inference with Mr Brockie‘s freedom of
religion if he were forced to act in a manner contrary to his religious belief; it
also found that Sexual Orientation Regulations pursued a legitimate aim;
further it found that it would be disproportionate to require Mr Brockie to
print material of a nature that could reasonably be considered to be in direct
conflict with the core elements of his religious belief. Thus a balance was
struck in favour of the anti discrimination legislation to the extent that the
printed material contained a directory of goods and services that would be of
interest to the gay and lesbian community while at the same time striking the
balance in favour of religious belief in relation to material that promoted the
gay and lesbian lifestyle and ridiculed the religious belief.

On 12 September last the religious belief on homosexuality surfaced again in
the courts in Northern Ireland when Sandown Free Presbyterian Church in
Belfast was granted leave to apply for Judicial Review of a decision of the
Advertising Standards Authority that an advertisement published in the
Newsletter under the heading ―The Word of God against Sodomy‖ was a
breach of the advertising code in that it was likely to cause serious or
widespread offence.     The advertisement set out the religious belief that
homosexual activity is sinful by reference to biblical sources. The applicant
relied on freedom of religious belief and freedom of expression under Articles
9 and 10 of the European Convention. These qualified rights may be subject
to proportionate interference for legitimate purposes which include the rights
and freedoms of others. There is debate as to whether there is any right not to

be offended by the actions of others.       I should say no more about this
challenge as there will now be a substantive hearing of the Judicial Review.

This religious belief is of course not particular to Northern Ireland. In London
Borough of Islington v Ledele [2009] IRLR 154 the claimant was a Registrar of
Marriages. When the Civil Partnerships Act came into force, she refused to
participate in registering such partnerships because to do so was inconsistent
with her religious beliefs. She alleged that there had been direct
discrimination, indirect discrimination and harassment by reason of her
religious belief. Her employers had allowed her to avoid a requirement, of
general application, that all registrars officiate at civil partnerships, but did
require that she perform administrative as distinct from ceremonial functions
in relation to such partnerships if required to do so. The Employment Appeal
Tribunal held that no discrimination had been established. This was not direct
discrimination as the applicant was treated the same as others but wanted to
be treated differently. Her complaint was about the failure to accommodate
her difference, which might provide a basis for indirect discrimination unless
justified. Once it was accepted that the aim of providing the service on a non-
discriminatory basis was legitimate then the council were entitled to require
all registrars to perform the full range of services. They were entitled in these
circumstances to say that the claimant could not pick and choose what duties
she would perform depending upon whether they were in accordance with
her religious views, at least in circumstances where her personal stance
involved discrimination on grounds of sexual orientation. That stance was
inconsistent with the non-discriminatory objectives which the council thought
it important to espouse both to their staff and the wider community. It would
necessarily undermine the council's clear commitment to that objective if it
were to connive in allowing the claimant to manifest her belief by refusing to
do civil partnership duties.

In todays multicultural society clashes with religious belief will not be limited
to Christian beliefs. In X v Y [2008} All ER 978 a school refused to allow a
Muslim girl to wear the niqab veil, which is a veil that covers the entire face
and head save for the eyes. It was held that the claimant's article 9 rights had
not been interfered with as she could have accepted the offer of a place at
another school which achieved good academic results and which was easy for
her to get to and most significantly where she could wear her niqab. In any
event any interference was found to be justified as the rule prohibiting the
wearing of the niqab was made for the legitimate purpose of protecting the
rights and freedoms of others because of the desirability of having a uniform
and further because it met the test of proportionality. The objective of having
a uniform was sufficiently important to justify limiting the article 9 right and
the rule prohibiting the wearing of niqabs was rationally connected to it and
went no further than necessary to accomplish the school's objective.

More recently the court has accorded considerable weight to the legislative
choice made by Parliament in prohibiting open air funeral pyres. In Ghai v
Newcastle [2009] EWHC 978 the claimant invoked Article 9 freedom of
religion and belief, as protection of a right to conduct cremations on open air
pyres. It was held that Article 9 would protect the claimant's freedom to
manifest his religious belief in open air funeral pyres in the absence of
justification. The claimant's belief in open air funeral pyres was found to be
cogent and also central to his strand of orthodox Hinduism. It is beside the
point that typically Hindus in the UK do not share that belief. The prohibition
on open air funeral pyres in the legislation was found to be justified. Others in
the community would be upset and offended by them and would find it
abhorrent that human remains were being burned in that manner. It was
stated that a court must accord primacy to the conclusion of elected
representatives. The balance struck in the legislation was entitled to respect.
The claimant conceded that with time, education and publicity the public
would not be offended but would recognise that open air funeral pyres were

a practice worthy of respect. That pointed to engagement with the political
process to attempt to change the present balance of interests in the current
legislative scheme.


Harassment provisions have become a key element of discrimination law.
The Equal Treatment Directive refers to harassment as unwanted conduct
related to any of the protected grounds which 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. The harassment
provisions in the Sexual Orientation Regulations referred to unwanted
conduct which had the purpose or effect of (a) violating dignity or (b) creating
an intimidating, hostile, degrading, humiliating or offensive environment.
Further, the definition of harassment provided that conduct had the stated
effect only if, in all the circumstances, including in particular the perception of
the person affected, it should reasonably be considered as having that effect.
This is also the version of harassment found in other equality legislation in
Northern Ireland dealing with sex discrimination, fair employment, race
relations and the Employment Equality Sexual Orientation Regulations. It is
also the version appearing in the legislation in England and Wales.

The House of Lords and House of Commons Joint Committee on Human
Rights, in considering the Sexual Orientation Regulations, expressed concern
about the compatibility of the definition of harassment with both freedom of
speech in Article 10 and freedom of thought, conscience and religion in
Article 9. The potential interference with freedom of speech arose because
people may feel inhibited from saying something if they fear that a person
may perceive it is a violation of their dignity or as 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 the Regulations
did not provide an exemption for harassment. Thus, where a person carrying
out an exempt activity sought to explain why a person has been excluded
from that activity, there was a risk that the person being told would regard
the explanation as violating their dignity or as offensive and therefore claim
that they have been harassed.

I understand that the harassment provisions have not become the subject of a
further consultation exercise. When the English equivalent of the Sexual
Orientation Regulations were introduced in 2007 there were no harassment
provisions. The Equality Bill maintains the essence of the domestic version of
harassment in relation to age, disability, gender reassignment, race, religion
or belief, sex or sexual orientation.

                     Statutory Equality Duties.

The equality legislation embraces not only anti discrimination laws but
increasing statutory equality duties on public authorities designed to effect
social change.    Section 75 of the Northern Ireland Act 1998 enacted an
‗equality duty‘ and a ‗good relations duty‘. It imposes an equality duty in
relation to sex, race, religious belief, political opinion, disability, marital
status, caring status, age and sexual orientation. It imposes a good relations
duty in relation only to race, religion and political opinion. Public authorities
draw up an Equality Scheme and are monitored by the Equality Commission.

The Commission, in its Five Year Review, has assessed the equality duty as
being ―effective in a number of key areas. Over a relatively short period it has
effected substantial change in how a policy is made. The result is more

informed in evidence based policy that reflects the needs of individuals, in
terms of equality of opportunity and good relations. Effective consultation
has been a particular success, giving rise to an inclusive policy making

Schedule 9 of the 1998 Act provides for the enforcement of the equality duty.
The Equality Commission will carry out a review of complaints and the
Secretary of State may issue directions to the public authority with notice to
the Northern Ireland Assembly. In other words there is political enforcement.
The role of the court was considered by the Court of Appeal in Northern
Ireland in Neill‘s Application [2006] NI 278.       The applicant challenged a
complaint of anti social behaviour under Article 3 of the Anti Social
Behaviour (Northern Ireland) Order 2004 for non compliance with Section 75.
The Equality Commission had concluded that an equality impact assessment
was required in light of a conclusion that young males were more likely to be
affected by the introduction of ASBOs. The Court of Appeal concluded that
Judicial Review was not available to the applicant. The only route by which
the alleged failure to comply with the equality scheme could be challenged
was the procedure set out in Schedule 9. Parliament had intended that in the
main the consequences of a failure to comply with Section 75 would be
political although that did not mean that Judicial Review would in all
instances be unavailable and the existence of the Schedule 9 procedure would
not oust the jurisdiction of the Court in all instances of a breach of Section 75.

By contrast Section 76 of the 1998 Act renders it unlawful for a public
authority carrying out functions in relation to Northern Ireland to
discriminate on the grounds of religious belief or political opinion. This duty
is enforced by Court proceedings for damages or the grant of an injunction
restraining the activity.

In Great Britain the courts have been engaged in reviewing the manner in
which public authorities have carried out their statutory equality duties.
These duties on public authorities have been introduced in Great Britain by
amendments to the statutes on race relations, disability discrimination and
sex discrimination. Each requires a public authority to have ‗due regard‘ to
the need to eliminate unlawful discrimination and to promote equality of
opportunity. In contrast to individual discrimination complaints, the positive
statutory equality duties are concerned with processes and the obligation on
the public authority to take positive steps. This is a means of attack on the
social and economic factors that may underlie discrimination. It seeks to
tackle ―institutional‖ discrimination.    The performance of the statutory
equality duty is subject to Judicial Review. The courts have examined the
actions of public authorities in having ‗due regard‘. Thus in Watkins Singh v.
Aberdare Girls High School [2008] EWHC 1865 the decision of a school to
refuse to allow a Sikh pupil to wear the Kara, a plain steel bangle which has
great significance for Sikhs, was challenged both on the basis of race
discrimination and for breach of the statutory equality duty. The Court found
indirect race discrimination that had not been justified by the school. In
addition the Court found a breach of the statutory equality duty in the
adoption of its policy.

In Eisai v. National Institute for Clinical Excellence [2007] EWHC 1941 a
challenge was made to the National Health Service guidance on identifying
the class of patients who would most benefit from Alzheimer‘s disease
inhibitor drugs. The guidance proposed certain tests which it was accepted
had discriminatory effects on persons of non UK national origins and those
with certain disabilities.   The Court found that the formulation of the
guidance had not given close scrutiny to the reasons for the lack of provision
for the disadvantaged groups and to properly test whether they were
proportionate and pursued a legitimate aim.

The Equality Bill will increase the duties on a public authority in England,
Scotland and Wales to have due regard to the desirability of exercising
powers in a way that is designed to reduce the inequalities of outcome which
result from socio-economic disadvantage.

Further the Equality Bill will require a public authority in those jurisdictions,
in the exercise of its functions, in relation to age, disability, gender
reassignment, marriage and civil partnership, pregnancy and maternity, race,
religion or belief, sex and sexual orientation. (political opinion and
dependents are not covered) , to have due regard to the need to —

       (a) eliminate discrimination, harassment, victimisation and any other
       conduct that is prohibited by or under this Act;

       (b) advance equality of opportunity between persons who share a
       relevant protected characteristic and persons who do not share it;

       (c) foster good relations between persons who share a relevant
       protected characteristic and persons who do not share it.

Contrast sections 75 and 76 of the Northern Ireland Act 1998. The first duty is
to ‗eliminate‘ discrimination, harassment and victimisation, as opposed to not
discriminating. The second duty is to ‗advance‘ equality, as opposed to
promoting equality. The third duty is to ‗foster‘ good relations, as opposed to
promoting good relations. The three duties might be seen as requiring action
that will have the effect of targeting outcome rather than process.

At this point I return to the discussion on the clash between religious belief
and other protected rights to note that the imposition of positive duties on
public authorities to have regard to the need to eliminate discrimination on
the ground of religious belief may pose added problems.


Deciding on the appropriate balance in the event of a ―clash of equalities‖ is
initially a matter for Parliament. Thereafter it may become an issue for the
judiciary. I have said at the outset that all legislation has a social and legal
context and part of that context is the toolkit which judges use to balance
competing rights. One of the most significant additions to our toolkit is the
Human Rights Act 1998, which brings the European Convention on Human
Rights into our law. The Convention provides a structure and language to
assess where the balance of rights should lie in any given case and provides a
basis for decision-making, not just for judges but also for public authorities
making choices in the difficult area of balancing the competing claims of
equality groups.

The challenge for the judiciary has been aptly described by Munby LJ in the
Court of Appeal in England and Wales in Sulaiman v Juffali. His words hark
back to Locke, but describe the pragmatic balancing-act which we undertake
in the real-world cases that come before us -

      ―Although historically this country is part of the Christian west, and
      although it has an established church which is Christian, I sit as a
      secular judge servicing a multi-cultural community of many faiths in
      which all of us can now take pride sworn to do justice ‗to all manner of
      people‘. Religion – whatever the particular believer‘s faith – is no
      doubt something to be encouraged, but it is not the business of
      government or of the secular courts. So the starting point of the law is
      an essentially agnostic view of religious beliefs and a tolerant
      indulgence to religious and cultural diversity. A secular judge must be
      wary of straying across the well-recognised divide between church and
      state. It is not for a judge to weigh one religion against another. All are

entitled to equal respect, whether in times of peace or, as at present,
amidst the clash of arms.‖


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