Equinet Legal Training Lessons Learned and Practical Experiences from Northern Ireland

Legislative Background The Christian Institute (2007) NIQB 66 Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 UK Government enacted legislative provisions to address the issue of discrimination on grounds of sexual orientation.

The Legal Challenge Northern Ireland Regulations came into force in January 2007 before the broadly equivalent provisions in England & Wales Legal Challenge Regulations challenged by way of Judicial Review by group of 7 applicants and became known as the Christian Institute case.

Judicial Review Challenge 2 Core Elements to applicants case 1 Consultation Challenge 2 Convention Challenge

Grounds of Challenge Consultation Challenge - There had been breach of public law principles arising from inadequate consultation prior to the making of the Regulations. Convention Challenge -The Regulations were inconsistent with the applicant’s rights under Article 9, 10, 14 & 17 of the European Convention on Human Rights.

Participants in the Case Christian Institute Judicial Review resisted by Office of First Minister and Deputy First Minister Equality Commission for Northern Ireland, Human Rights Commission and the Coalition on Sexual Orientation intervened in the case.

The Consultation Challenge Harassment on grounds of sexual orientation. Scope of the wording of the domestic legislation wider than in the Employment Equality Directive. Domestic provisions used word “or” instead of “and” – violating dignity or creating intimidating environment. Domestic provisions also look at perception of the alleged.

Court Decision The competing right may not only be the right to freedom of speech but may be the right to manifest a religious belief. Where the exercise of the right to freedom of speech also involves the manifestation of a religious belief there will be an added basis on which to seek to justify the action. This provides an added consideration in the case of sexual orientation that may not apply to other grounds of discrimination

Court quashed the harassment provisions in the Regulations. Court Decision re Consultation Challenge

Convention Challenge Article 9 (1) -Everyone has the right to freedom of thought & Article 10 Everyone has right to freedom of expression Christian Institute argued Regulations privileged protection afforded to sexual orientation over the protection afforded to expression of religious belief and required persons of orthodox religious beliefs to promote ideas to which they had religious objection

Court Decision on Convention Challenge Court held that the orthodox Christian belief that the practice of homosexuality is sinful was a long established part of the belief system. Article 9 & 10 rights were engaged. Judge was satisfied that the Regulations will result in instances of material interference with the applicants freedom to manifest the religious belief in question.

Court Decision on Convention Any proper analysis of the balance to be struck between an alleged interference with the applicants rights and the justification for such an interference was necessarily a fact specific question that would require examination against the backdrop of a specific case.

Court Decision on Convention Challenge Court rejected Convention rights challenge. Court held that a viable approach was to consider whether the believer was being required to undertake action that promotes a concept which the essence of their belief teaches to be wrong.

Outcome of Case No appeal against the Court decision. All sides claimed victory- applicants had secured quashing of harassment provisions. State upheld the Regulations except for this single provision re harassment.