Potential Opt Out of Equality Legislation

Introduction

The proposal for a ‘conscience clause’, a potential opt out of equality legislation for service providers in Northern Ireland emerged after the Ashers Bakery judgement. This dissertation will seek to explore how such a clause would, if implemented, work in practice. It will examine instances where there are already competing or conflicting rights in law, especially from a European perspective and if it is achievable to balance these rights for the benefit of all. The overarching aim is to investigate if it would provide protection to people possessing religious beliefs, especially in a service type environment, or it has the potential to open a ‘Pandora’s box’ of unlimited and indiscriminate breaches of equality and human rights law.

The objective of chapter one is to introduce context to the issue of homosexuality by examining the historical development not only of the law, but of attitudes in society towards homosexuality. The rationale for this is that it will help provide an insight into the Ashers Bakery case and the conflicting attitudes surrounding the decision. Its purpose it to provide a basis for understanding how this case represented a manifestation of the communal characterisation of religion and homosexuality in society. It is acknowledged that there are also prejudicial attitudes towards other protected equality strands, although the focus will be on homosexuality. It will also examine the issue of homosexuality from a religious and moral perspective to attempt gaining an understanding of the complexity of the clash between homosexuality and religion. In addition, it will analyse the current anti-discrimination legislation in Northern Ireland and question if this already offers sufficient protection for all.

A comprehensive review and scrutiny of the Ashers Bakery case will be the thrust of chapter two. This will assist with understanding how the call for a conscience clause emerged. The different legal arguments will be presented to gain a knowledge of the strength of feeling towards competing rights. As a reaction to the decision in Ashers, the Freedom of Conscience Amendment Bill was published. This was a proposal to provide service providers, such as Ashers Bakery, the ability to opt out of existing equality law in pursuit or protection of their strongly held religious views. This Bill will be probed to gauge either how effective or counter-productive it could be if enacted, using responses to the Consultation document as a means of concluding what effect the Bill may have.

Chapter three will highlight and discover the approach taken from a European perspective in balancing conflicting Convention rights. It will consider cases the Court has already decided and learn how decisions were reached with the assistance of the tools of European jurisprudence.  The purpose is to answer if it is more useful to follow the European approach of resolving conflicting rights as opposed to legislating for an exemption clause, which may or may not be as effective at achieving a balance. Furthermore, it will also explore other areas where conscientious objection already exists, taking the examples of abortion and military service. The intention of this is to demonstrate the effects of how claims of conscience works in existing law, focussing on protection for the objector versus ramifications for having such provision in the first place.

Chapter four will study another jurisdiction where a similar provision has already been introduced. The objective is to determine how such an exemption from equality law would work in practice, and what implications there may be. It will also inquire as to the effects of introducing a ‘conscience clause’ into equality legislation on the provision of goods and services and conduct an examination of how this could lead to far wider consequences. It will analyse if it has redressed the imbalance that members of the religious community had in relation to expressing their views, or if it will skew the scales and cause unforeseeable consequences.  In addition, it will investigate the current legal systems that exist to protect against discrimination by examining those systems that act as barriers towards discriminatory legislation. It will assess if the Amendment Bill can clear these hurdles before becoming law.

Methodology

The methodology utilised in this thesis is library based, in accordance with the dissertation guidelines. It will focus on established case law and the surrounding academic commentary. Government papers, consultations and responses from non-governmental and community organisations will form the basis for research in determining the ultimate questions- can the freedom of conscience be successfully balanced with the rights of others and would the introduction of legislation to give service providers an opt out of discrimination laws be the most appropriate way of achieving this.

Chapter 1

1.1 The Contextual Background of Homosexuality in Northern Ireland

To properly gauge why it is evident that there are negative attitudes towards homosexuality, it is crucial to examine the historical background. There is a long tradition in the Christian West of hostility towards homosexuality.[1] Negative perceptions towards homosexuality have not been a local problem, confined to the United Kingdom. Similar legislation in Scandinavia, Holland, Belgium and France was enacted to criminalise it. In the United States, Illinois was the first state to legalise it in 1962.[2] On reflection, it is easy to see how far the law and societal attitudes have transformed over a relative short period of time. From a point prior to decriminalisation where homosexuality was not even given a name. The case of R v Rowed and another[3] described the homosexual act in terms such as ‘nasty, wicked, filthy, lewd, beastly and unnatural.’[4] The Court in this case concluded that these descriptions did not have legal significance as they inadequately expressed the proscribed act.[5] Leslie Moran has described this as ‘naming the unnameable’.[6] Terms such as buggery, sodomy and even gross indecency[7] were used to describe homosexuality.[8] The Wolfenden Committee, a committee set up to examine decimalisation of the law, was troubled with terms such as buggery and suggested that this type of terminology should be taken out of the ‘lexicon of the law’.[9]

The Offences Against the Person Act 1861 is an important legislative act to consider in tracing the developments of the law in relation to homosexuality. It represented ‘a formal move towards civilisation’ by removing the death penalty for sodomy and replacing it with a variable prison term.[10] The punishments were subsequently downgraded in the following Amendment Acts.[11] However, in 1952 the experimental chemical castration of the renowned World War 2 codebreaker, Alan Turing[12] shows how harsh the law still was at that point.

A most powerful example of the level of discrimination against the LGBT community can be found around the period of the Second World War. The horrors of the Nazi concentration camps are well documented. Within those camps, homosexuals were forced to wear a pink triangle symbol to make clear the reason for their captivity. After the war, compensation was provided by western governments to victims of Nazism but gay men and lesbians were not recognised as victims, and thus were ineligible.[13] It was only relatively recently that some governments have extended compensation programs, years too late for many victims who had since died.[14]

Attitudes of people who were homosexual towards themselves is perhaps an illustration of the complexity of the problem. In the late 1960’s, many homosexuals regarded their sexual orientation as ‘at best a misfortune, and potentially a source of shame’.[15] Thus, they tended to disguise and be discreet with their orientation. This is not unexpected in view of the societal attitudes that existed. Considering the views at that time included in the medical sphere some psychiatrists taking the view that homosexuality was a ‘form of pathology’,[16] potentially caused by a lack of male role models in the family unit[17] or the rationalisation by sexologists that is was an ‘affliction that was not curable’[18]. These views perhaps underscore the depth of hostility and ignorance that were present.

In Northern Ireland there were many objections to homosexuality from a wide spectrum of organisations, including the Orange Order and the Catholic Church, the latter stating that the introduction of such legislation would lead to a ‘further decline in moral standards and a climate of moral laxity’.[19]A draft Homosexual Offences (Northern Ireland) Order 1978 aimed to bring Northern Ireland into line with England and Wales led to huge resistance, including the DUP backed ‘Save Ulster From Sodomy’ campaign which collected over 70,000 signatures against the introduction of such provisions.[20] Paul Givan MLA, proposer of the Private Members Bill is a member of the Democratic Unionist Party (DUP). The DUP were returned as the largest party in the Northern Ireland Assembly last year[21]and again after the recent Assembly elections.[22] It has been described as an ‘ethno-religious’ organisation.[23] It is said that from the outset of their formation, the DUP has ‘fused together’ political unionism and religion.[24] Even today this fusion still appears intact considering that party branch meetings, especially in rural areas, begin with prayers.[25] This is further compounded by the view that unionism has traditionally viewed the law as something which provides freedom to the individual in areas such as worship, assembly and speech.[26] Therefore, it is without surprise that notions of freedom of conscience has derived from these traditional viewpoints.[27]

Iris Robinson, wife of the former DUP First Minister and herself a former DUP Member of Parliament has expressed views on homosexuality. She has described it as an ‘abomination’ and something that made her feel ‘sick and nauseous’.[28] Later, in a parliamentary debate on the management of sex offenders she conflated the two separate issues of homosexuality and child abuse by stating ‘There can be no viler act, apart from homosexuality and sodomy, than sexually abusing innocent children’.[29] The presentation and effect of her language is astounding in that she conveyed the view that child abuse was less of a ‘viler act’ than homosexuality. In another comment, she said: ‘just as a murderer can be redeemed by the blood of Christ, so can a homosexual’.[30]

It is incorrect to consider these comments in isolation. Instead, it is worthwhile to examine comments from other influential members of the party to achieve a greater understanding of the presence of an ideological opposition to homosexuality. For example, Ian Paisley Jr MP took the view that he was ‘pretty repulsed by gay [sic] and lesbianism’.[31] Homosexuals were described by a DUP MLA as  ‘Godless people with reprobate minds’.[32] Attempts were even made by DUP representatives to justify the devastating Hurricane Katrina in New Orleans in 2005 by describing it was a ‘warning to nations where such wickedness is increasingly promoted and practiced’.[33] Former First Minister and party leader Peter Robinson himself made his position clear on how homosexuality was unnatural:

The Supreme Moral Arbiter is Almighty God. And he has decreed that homosexuality is unnatural. That’s the end of the matter. It’s not open to discussion.[34]

Comments from elected members of the Democratic Unionist Party perhaps reflect the attitudes towards a significant proportion of the public, judging by the electoral success the party has enjoyed.[35] However, they are not the only political party to hold such views, although some may be more conservative in the ways those views are expressed. For example, the Social Democratic and Labour Party (SDLP) a nationalist party in Northern Ireland, are also conservative in outlook and hold similar views to the DUP in terms of moral issues such as abortion and same sex marriage.[36]

The law on homosexuality in Northern Ireland progressed more slowly than in England and Wales. After the publication of the Wolfenden Report, the Sexual Offences Act (1967) decriminalised the act of homosexuality.[37] The legislation did not extend to Northern Ireland. The pivotal Northern Ireland case of Dudgeon v United Kingdom[38]led to the overturning of the Criminal Law Amendment Act 1885. The case was significant as it was the first time the European Court of Human Rights had combined the issue of homosexuality and human rights.[39] Approaching this ruling negatively, it could be argued that attitudes towards homosexuality are still entrenched and the case of Dudgeon underscores that point. Alternatively, a more positive viewpoint would suggest that from the naked unjustified discrimination in the middle of the twentieth century is a representation of a rapid societal shift. It illustrates how far LGBT rights have progressed in a relatively short period.

‘One of the most speculator results of the sexual emancipation (…) has been the emergence of homosexuality from the clouds of silence in which it was shrouded’[40] It is clear that progressively, from the reversal in the attitudes of many and the changes to the legislation, the LGBT community now have recognition and rights that are unparalleled to any period in history. From death by hanging in the mid-18^th century, a possible life sentence at the beginning of the 20^th century, to today where there is a drive towards full equality, the progress has been considerable.  But this is only the beginning of the story. Discrimination, directly or indirectly, is still a common occurrence.  No more is this evident in Northern Ireland, a society built  that lags behind others in terms of attitudes and absence of legislative movement towards full equality.  There is a long way to go before full equality for the LBGT community is realised.

1.2 – Background to the Current Law in Northern Ireland – The Equality Act (Sexual Orientation) (Northern Ireland) Regulations 2006

The various anti-discrimination laws in Northern Ireland have been described as a ‘patchwork of provisions’.[41] Incremental and inconsistent approaches to this area of law as resulted in an overall anti-discrimination framework that is ‘piecemeal’. [42] The consequences of this framework are unsatisfactory. There are over 80 pieces of anti-discrimination legislation in Northern Ireland. It is not surprising then that given such a magnitude of legislation,  inconsistencies are created by offering varying levels of protection and inevitably creates confusion among employers, service providers and individuals.[43] The overarching concern is that such an approach ‘raises serious concerns over access to justice’.[44] Unlike in England and Wales, Northern Ireland does not have a single equality act[45], which would remove many of the concerns by amalgamating the various provisions into one legislative act. The following section provides an insight into the non-discrimination on the grounds of sexual orientation in Northern Ireland.

The Equality Act (Sexual Orientation) (Northern Ireland) Regulations 2006

A consultation document was released in 2006 containing proposals to outlaw discrimination on the basis of sexual orientation. In the forward of the Paper, the Minister of State at that time, David Hanson, MP stated

Lesbian, gay and bisexual people can, and do, still face unacceptable prejudice in their everyday lives. Same-sex couples can find themselves turned away from hotels, or getting a raw deal from some other service providers, simply because of their sexual orientation. This situation is unfair and outdated. Gay men, lesbians and bisexual people should have the same basic rights and freedoms as heterosexual people. For this reason, we intend to introduce regulations in November this year that outlaw sexual orientation discrimination by goods and services providers in both the public and the private sectors.[46]

The scope of the intended regulations was beyond sexual orientation discrimination in respect to the provision of goods or services. It also included proposals to prohibit this type of discrimination in areas such as housing, education, advertising and facilities.[47] An example was provided to highlight a typical situation where discrimination may occur was a same sex couple reserving a double room in a hotel, but after arrival the room was not provided to them as they were told it may cause offence to other customers.[48] This is an example of the type of scenario that the Regulations wanted to outlaw.

The Equality Act 2006 made provision for the Office of First Minister and Deputy First Minister (OFMDFM) to introduce secondary legislation or regulations in relation to discrimination or harassment on the grounds of sexual orientation.[49] Pursuant to Section 82, the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 were passed. Their introduction proved controversial.[50] They are introduced at a time when the Northern Ireland Assembly were in suspension. The rationale for their passage was that there was a lack of political consensus among the parties and that it was ‘most unlikely that they would pass through the Assembly legislative process (…)’.[51]

Article 5 of the Regulations state

(1) It is unlawful for any person concerned with the provision (for payment or not) of goods, facilities or services to the public or a section of the public to discriminate against a person who seeks to obtain or use those goods, facilities or services —

(a) by refusing or deliberately omitting to provide him with any of them; or

(b) by refusing or deliberately omitting to provide him with goods, facilities or services of the same quality, in the same manner and on the same terms as are normal in his case in relation to other members of the public or (where the person seeking belongs to a section of the public) to other members of that section.[52]

It is apparent that Article 5 affords protection to minorities such as the LGBT community, especially in the provision of goods and services. The Ashers case confirms this. There is also protection afforded to members of the religious community through Article 16 of the Regulations. It is made clear that it shall be lawful in certain circumstances to restrict goods, services and membership of organisations to comply with the doctrine of religious authority. Article 16 states

Nothing in these Regulations shall make it unlawful for an organisation to which this regulation applies, or for anyone acting on behalf of or under the auspices of such an organisation to which this regulation applies —

(a) to restrict membership of the organisation;

(b) to restrict participation in activities undertaken by the organisation or on its behalf or under its auspices;

(c) to restrict the provision of goods, facilities and services in the course of activities undertaken by the organisation or on its behalf or under its auspices; or

(d) to restrict the use or disposal of premises owned or controlled by the organisation, in respect of a person on the ground of his sexual orientation.[53]

However, in an attempt to balance rights, there was no protection afforded where goods and services extended into a commercial setting.

Judicial Review

Almost immediately after their introduction, the Regulations were the subject of a legal challenge due to apparent ‘competing concepts of equality and freedom of religion’.[54] A combined group of religious organisations were the applicants in Christian Institute Application.[55] The applicants were not opposed to the principle of equality legislation on the grounds of sexual orientation per se, but more concerned with the formation of the legislation in relation to an insufficient equality of treatment between the anti-discrimination measures on the grounds of sexual orientation on the one hand, and protection of religious beliefs on the other.[56]  Besides the alleged impropriety around an inadequate consultative process, the main area of contention was the introduction of harassment provisions into the Regulations.

The consultation document, released prior to the introduction of the Regulations, made clear that the proposals were compliant with the European Convention on Human Rights.[57] It noted its intention to liaise with the Northern Ireland Human Rights Commission in respect to giving consideration to ways in which it is necessary to balance people’s rights.[58] Therefore, even before the introduction of the Regulations, there was consideration present for the need to have a balancing of competing rights. However, the Court found in favour of the applicants on two grounds. Firstly, they agreed that the consultation process prior to the implementation of the harassment provisions was inadequate[59] and were therefore quashed. Secondly, the court found a failure to assess how a balance was to be struck between the right to manifest a religion of belief and the right not to be harassed. [60]

On the back on this judgement and in light of commentary surrounding the introduction of the Regulations, it appears that the introduction of the harassment provisions into the Regulations was inappropriate. The OFMDFM themselves appeared to be of the view that a Single Equality Bill would have been a ‘more appropriate vehicle’ to consider harassment and provide space and time to deal with the complexities around its inclusion.[61] Other concerns around the inclusion of harassment were of the ‘width and vagueness’ of such provisions.[62] The House of Lords and the House of Commons Joint Committee on Human Rights recommended avoiding the path Northern Ireland had taken by proposing that the Regulations for Great Britain included a much narrower definition of harassment to reduce incompatibility with Convention obligations.[63]

The Christian Institute case gifts an insight into several areas. Firstly, it underscores the argument that anti-discrimination law in Northern Ireland is indeed a ‘patchwork of provisions’. Secondly, it highlights the concerns of some around compatibility with the right to manifest a religion or belief in accordance with their Convention rights. Thirdly, it suggests that the introduction of a single Equality Bill would remove the confusion and inconsistencies and even provide more protection in the form of harassment provisions. It became apparent that in drafting the Regulations to ensure the pendulum did not swing too much in favour of one group to the detriment of another, it was not enough. The following section will examine the facts and judgement in the case where bakery owners refused to print a message on a cake as it conflicted with their religious beliefs. It will attempt to analyse the significance of this case, especially in the context of the subsequent debate around providing broader exemptions in the Regulations.

Chapter 2

2.1 – Case Study: Lee v Ashers

The case of Garth Lee v Ashers Baking Co Ltd (1^st Defendant) and Colin McArthur (2^nd Defendant) and Karen McArthur (3rc Defendant)[64][hereinafter referred to as Lee v Ashers] represented the catalyst for the discussion pertaining to the introduction of a conscience clause.[65] The case ignited a debate around the exercise of religiously motivated objections in the context of goods and services provision. More specifically, this is the proposed introduction on a conscience clause into Northern Ireland anti-discrimination law.[66] It is important to examine this case as it raises some arguments that are central to the question of conscience, competing rights and how balancing these rights can be achieved.

Facts of the case

The Plaintiff, Mr Gareth Lee, a gay man who was associated with a group called QueerSpace, an organisation campaigning for the rights of the lesbian, gay, bisexual and transgender community in Northern Ireland.[67] The plaintiff was planning to attend a private function on Friday 17^th May 2014 to mark the end of the Northern Ireland anti-homophobia week and also celebrate the political momentum towards the introduction of same sex marriage in the Northern Ireland Assembly.[68] He wanted to purchase a cake to mark the occasion. As a previous customer of Ashers Bakery (the Defendants), he was aware they offered a service involving the printing of a graphic of choice onto a cake.[69] He attempted to avail of this service and placed the order the week prior to the event, made payment and the order was accepted. The graphic on the design was a logo of QueerSpace, a coloured picture of the characters Bert and Ernie and a headline caption ‘Support Gay Marriage’.[70] Several days after this, the plaintiff received a telephone call from the Defendants explaining that with the benefit of hindsight, the order should not have been taken and therefore could not be fulfilled. The reason provided for this was that their bakery was a ‘Christian Business’.[71]

In giving evidence, the plaintiff stated that the refusal made him feel like a ‘second class citizen’.[72] He claimed that he was not asking the Defendants to share or support his views on same sex marriage, only to provide him with the service that was advertised in their shop.[73] The Defendants, in giving evidence, stated their opposition to the introduction of same sex marriage. They held the belief that, in accordance with Gods law, homosexuality was sinful.[74]

The Judgement

The contention that the 2006 Regulations did not apply as the Defendants were unaware of the plaintiff’s sexuality was rejected by Judge Brownlie who stated

What is required is proof of a factual matrix of less favourable treatment on the ground of sexual orientation and not the motive. I regard the criterion to be “support for same sex marriage” which is indissociable from sexual orientation.[75]

The Defendants advanced the argument that they would have produced the cake in the absence of the message ‘support gay marriage’. Additionally, they stated that they would have rejected the order even if the person was heterosexual.[76] These comparators were rejected by the Court, that held if a comparator was required, the correct one should be a heterosexual person placing an order for a cake with the slogan “Support Marriage” or “Support Heterosexual Marriage”.[77]

The main submission in the case was that putting the slogan on the cake would have been contrary to their religious beliefs.[78] This was addressed by the Court who acknowledged their view that same sex marriage was sinful and that they possessed ‘deeply held religious views’. However, it was found that as they were in a profit making business, the law requires them to supply services to all on the provision that the graphic is lawful and not contrary to the terms and conditions of the company.[79] Judge Brownlie stated

[t]he purpose of the Regulations was to secure that people of homosexual orientation are treated equally with people of heterosexual orientation by those in the business of supplying goods, facilities and services. Parliament was very well aware that there were deeply held religious objections to what was being proposed and careful consideration had been given how best to accommodate these within the overall purpose[80]

There are no exemptions under the 2006 Regulations that would apply to these circumstances.[81] The finding of the Court was that the Plaintiff was unlawfully discriminated against on the ground of his sexual orientation contrary to Regulation 5 (1) of the 2006 Regulations which was direct and without justification.

The primary focus of the case is in respect to discrimination on the grounds of sexual orientation contrary to the 2006 Regulations. However, it should be noted that the Court also considered discrimination on the grounds of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998.

From a human rights perspective, competing arguments were presented. This includes, on behalf of the plaintiff that a limited company cannot invoke Article 9 of the European Convention on Human Rights. In addition, they contended that Article 9 is a qualified right and if a clash of rights were to occur, it will be necessary to work out how this is resolved.[82] The Defendants argued that the Court should construe the 2006 Regulations consistently with the Convention and conclude that if they could not be interpreted compatibly, they should dis-apply them.[83]

In respect to Article 9 of the Convention, the Court held that the Defendants have a ‘Christian belief that is genuinely and sincerely held and they have a right to manifest their religion albeit limited by Article 9 (2).[84] Limitations can be placed on an individual’s rights in the circumstances where they are ‘prescribed by law and are necessary in a democratic society’.[85] The Court was of the view that the interference of Article 9 was clearly prescribed by law, there was an intention to achieve a legitimate aim which was the plaintiff’s right not to be discriminated against.[86]

It was recognised by the Court that this case has competing rights under the Convention. The right to manifest their religion under Article 9 and the right under Article 14 not to be discriminated against on the basis of Article 8 and not being unjustly discriminated against on the grounds of sexual orientation.[87] The judgement found no incompatibility between Article 9 and the 2006 Regulations. To find such a conflict would be to ‘allow a religious belief to dictate what the law is’.[88] In the conclusion of the detailed discussion of Article 9, the judgement relies upon the authority of Kustannus Oy Vapaa and others v Finland[89]that a limited company cannot invoke Article 9 rights.[90] This corresponds with 16 (2) (a) of the 2006 Regulations in that any exemptions do not extend to organisations ‘whose sole or main purpose is commercial’.[91]

On Appeal

Prior to appeal, the Attorney-General for Northern Ireland intervened in the case. This is a demonstration of the heightened level of public interest that was present surrounding the case.  The Court of Appeal rejected his assertion that his intervention was merited on the basis that it went to the legislative or executive competence of the Assembly in terms of being compatible with the Convention.[92] The appeal was rejected. In delivering his judgement, Lord Chief Justice Morgan stated

Anyone who applies a religious aspect or a political aspect to the provision of services may be caught by equality legislation, not because the legislation treats their religious belief or political opinion less favourably but because that person seeks to distinguish, on a basis that is prohibited, between those who will receive that service and those who will not[93]

The Court rejected the suggestion that because an image was being put onto a cake that the Defendants did not agree with, they were somehow endorsing that message. It analogised by saying the fact that a baker provides a cake for a particular team or portrays images on witches on a Halloween cake does not indicate support for either.[94] On this basis, the same would therefore be true for images of support for gay marriage.

Perhaps the most surprising aspect of the ruling is the lack of coverage given to the consideration of possible alternatives. In the original case it was said that no consideration was given to any such alternatives, such as a non-Christian decorator icing the cake or to sub-contract the order to another provider.[95] This approach may have provided a solution to both parties.[96] Arguably, it would have removed the quandary the Defendants found themselves in, although in terms of other service provision such as the allocation of rooms, such alternatives become impractical. If more concerted attempts were made during the initial stages of cases such as Lee v Ashers to accommodate without compromising deeply held beliefs, then litigation may be avoided.

Analysis of the case

The decision, perhaps unsurprisingly, drew criticism and sparked intense debate around the rights of both the LGBT and religious communities. The decision was described, perhaps rather dramatically, as ‘a dark day for justice and religious freedom in Northern Ireland’.[97] The proposer of the Amendment Bill, Paul Givan MLA talked about the Courts ‘subverting democracy’.[98] There remains some confusion around the judgement and what it means in practice. Opposing interpretations emerged after the case. An important observation following the appeal was made by the Equality Commission’s Michael Woodrow in a BBC Interview when he said that ‘(…) the decision did not change the law, it only clarified the law’.[99] He was dispelling myths that the decision had created new law, by stating that the judgement only asserted what the law already was. Daniel McArthur, one of the appellants was of the opinion that the judgement would compel him and others to print messages that they did not agree with.[100] However on the same programme, legal commentator Joshua Rozenberg analysed that ‘The decision does not mean that they can be forced to promote or endorse views that they do not hold, but they cannot discriminate against people on the grounds of their views’[101] The complexity of the views surrounding the judgement are found in the comments of Peter Tatchell, a prominent gay rights activist who did not agree with the ruling. Whilst he acknowledged good intentions of the case, in his view it went too far.[102] He stated that businesses should not be required to promote ideas to which they have a conscientious objection as the discrimination against ideas should not be unlawful, only the discrimination of people.[103]

Widespread criticism against the ruling may have been fuelled by the presumption that this was in fact discriminatory against Christians. There is a belief that the law is used as a mechanism in which people of faith are punished and marginalised.[104] It is argued that these presumptions are wrong. In her analysis of the case, Emma Fitzsimons said ‘It is simply incorrect to construct the result of the equality jurisprudence of the British courts as prioritising sexual orientation over religion.’[105] In truth, although considered a controversial decision by some, it came as no surprise judged in the context of the Supreme Court case of Hall v Bull[106]two years earlier where the same dilemma arose.[107] The decision in Hall v Bull was ‘relatively non-contentious’.[108] The judgement was that in a commercial context, there is no right to manifest religious beliefs where they have an adverse impact on another.[109]As discussed, Hall v Bull contained very similar circumstances to Lee v Ashers. A homosexual couple were denied a double bed in a bed and breakfast business, that was run by a couple who held religious beliefs. These beliefs included homosexuality as being against the teachings of the Bible Lady Hale stated

We do not normally allow people to behave in a way which the law prohibits because they disagree with the law. But to allow discrimination against persons of homosexual orientation (or indeed of heterosexual orientation) because of a belief, however sincerely held, and however based on the biblical text, would be to do just that[110]

This was in reference to the Regulations in England and Wales, but they would be just as applicable to the Northern Ireland 2006 Regulations.[111] This statement can be reinforced by the significant comment of Lord Hoffman in R (SB) v Denbigh High School[112] where he stated ‘Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of one’s choosing’.[113] These comments make clear that although there is a legal recognition for the manifestation of religion, it is not infinite and it has to be controlled, especially in situations where another person may suffer discrimination resulting from that manifestation. In recognising the law as it was, Lady Hale was unequivocal in her analysis that allowing people to act outside of that law, regardless of however noble the beliefs they possessed were, would result in people being above the law. With that in mind, supporters of the Freedom of Conscience Amendment Clause may argue that its introduction will resolve the legal issue as they would no longer have to act outside the law. This would be, presumably countered by opponents of the clause who would contend that rather than balance competing rights, it would give people with a religious belief a kind of carte blanche freedom to discriminate. The potential effects of the introduction of the Amendment Bill will be discussed in the following chapter.

2.2 – The Freedom of Conscience Amendment Bill

The issue of exercising conscience on the grounds of religious beliefs has created unlikely alliances in Northern Irish society. The DUP, in supporting the introduction of a conscience clause and the Catholic Church echoing that support. In that two organisations who historically have had extreme differences, to the point where there existed, and it may be argued still does, ideological and even vitriolic relationships[114] have become advocates of a conscience exemption demonstrates how paradoxical this issue is.

It is noteworthy to recognise that if this Private Members Bill ever came before the Northern Ireland Assembly, it appears certain to fail in the absence of cross community support.[115] Other political parties have outlined their opposition to the Bill, and have stated that they will use the petition of concern mechanism to ensure it does not succeed.[116] Also, given the current lack of political certainty and absence of the institutions, its introduction does not appear imminent. Nevertheless, it is not beyond reasonable to suggest that this could change in future. This may be due to potential future political negotiations where one issue is compromised upon or traded for another, if the government changes or most likely, if the petition of concern function is abolished. Thus, it still remains relevant to assess the Bill in its current form.

Below is the proposal from the Consultation Paper to amend the 2006 regulations:

After Regulation 16 insert-

16A “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
   1. to restrict the provision of goods, facilities and services; or
   2. 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.

Views of the Proposer

The Freedom of Conscience Amendment Bill Consultation Document released by Paul Givan MLA in December 2014[117] contained within the appendix proposed amendments to The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006. In the document, Mr Givan discussed the historical form of democracy where the focus was on protecting the majority. In his view the progression of liberal democracy sought to rectify this by accommodating the needs of the minority whilst still following the will of the majority. To highlight how this has worked, he provides examples. These include conscientious objection in instances of military service or the giving of oaths. Another example he gives is the Motor Cycle Crash Helmets (Religious Exemption) Act 1976which afforded Sikhs a different treatment under the law. Again, in relation to Sikhs is the exemption from the law on wearing helmets on construction sites. This demonstrates an intention to ensure that in process of legislative enactment, there is no unintended consequences for minorities.[118]

The fundamental flaw, in his opinion, is that laws designed for one minority having adverse unintended consequences on another has not been rectified. This failure to observe, he believes, completely undermines the integrity of equality law.[119] He believes that this subversion of equality law is caused by not acknowledging that equality is about protecting all minorities. He states that it is not the correct approach to arm different equality strands with different pieces of legislation where each minority can inflict damage upon each other with their respective laws.[120] Mr Givan dismisses as ‘absurd’ the notion that a conscience clause would allow people to operate outside the law. He assures that any exception would be narrowly defined and lists some circumstances that would fall outside the definition. This includes no exemption to a Catholic photographer refusing to take a photograph of recipes created by a bisexual chef, as this would not have the effect of ‘endorsing, promoting or facilitating a same sex sexual relationship in violation of his or her faith identity as there is no conflict’.[121] Failure to incorporate an exception into equality law would in his view, make a service provider complicit in the affirmation of same sex relationships and place them into a position where they have to choose between endorsing homosexuality or losing their livelihood. He concludes by stating that this amendment can strike a balance between the rights of people not to be discriminated against and the rights of conscience of religious believers.[122]

Reaction and analysis

In relation to the crash helmet exemption for Sikhs, it does not seem an appropriate comparison. From a human rights perspective, his example is incorrect. In X v United Kingdom[123], the ECHR upheld the mandatory requirement to wear a crash helmet, justified by the limitations of Article 9 (2) of the Convention, the protection of health.[124] It is irrelevant that UK regulations were then introduced that provided an exception to Sikhs. Such laws do not interfere in the rights and freedoms of others.[125] The absence of a parallel group competing for differing rights do not make the crash helmet example viable in the context of conscience. The key difference is that the only harm done would be, in the event of an accident, to the believer alone.[126]

The intention of the Bill could perhaps be the answer to the question Ilias Trispotis posed –  should reliance on religious belief immunise believers from the reach of certain secular laws?[127] He answers this question, through an analysis of already established European case law that states discrimination on the grounds of sexual orientation must only be justified with ‘very weighty reasons’.[128] Therefore, any exceptions must be very limited. It could be concluded then that the enactment of the Amendment Bill would protect believers but the wider question of human rights implications and legality of the Bill remain unanswered. This is especially true around how to specifically limit circumstances in which service can be legitimately refused because of conscientious objection. Limiting these circumstances may be key to the legality of the Bill, but too tight a limitation may result in ineffectiveness.

Does it address and rebalance the argument that the law ‘significantly burdens the believer’?[129] On the assumption that this statement is true, it is obvious that it will remove, in the sphere of service provision, burdens on believers. However, rather than rebalancing, it has the potential to tip the scales wholly in favour of persons possessing religious beliefs, to the possible detriment of others.

There is disagreement over the assertion that the Bill is very narrowly defined. It cannot be narrow when any person, possessing a genuine religious belief could act to trump the anti-discrimination provisions of the 2006 Regulations.[130] This would in effect make the Regulations redundant at the moment a person of faith invoked their religious beliefs as justification for refusing a service.[131] Disagreements over the Bill also include the view that the intention is skewed in favour of one group of people to the detriment of another. There is a general disregard for the harm suffered by the individual. It is contended that it is not correct to construct the result of equality jurisprudence as prioritizing one minority over another.[132]

Through this amendment, Mr Givan is clearly of the view that the law in its current form is insufficient. He believes the introduction of a conscience clause will amend the perceived imbalance against members of the religious community.  William Evan opined that the aim of the law is to both codify existing customs and morals and to modify the behaviour and the values presently existing in a society.[133] In light of this, an argument could be presented given the nature of the customs and morals of Northern Ireland society, Mr Givan is only attempting to reflect those in his legislative amendment. However, there is a reality that serves to hollow out the main trust of Mr Givan’s hypothesis. He projects Christianity in our society as a minority strand. The definition of a minority, according to the United Nations, is that such a group must be in a ‘non-dominant position’.[134] In light of the last census showing the vast majority in Northern Ireland identifying as Christian[135], it is flawed logic to present such an argument.  From a social change perspective, a law that encouraged greater social discrimination against the LGBT community would be as much a vehicle for social change as one that sought to prevent it.[136] Although Mr Givan would argue that he is not seeking to effect social change but merely to preserve the customs and morals of the religious community, Evans analysis is interesting from the point that there is no assumption that a legal change will necessarily have a corresponding social change.[137]

It is useful to go back to the comments of Lady Hale in Hall v Bull where she stated that to allow discrimination against persons of homosexual orientation because of a belief, however sincerely held, and however based on the biblical text, would be discriminatory.[138] On this analysis, it is possible to state that the enactment of the Bill would amount to legalised discrimination based upon the subjective interpretation of a biblical scripture. The subjective nature of interpretation makes for non-uniformity on application of the law and has the potential to create confusion, reinforcing the notion of wider implications or consequences arising from this law that were unintended.

2.3 – Submissions to the Bill

The Consultation Document was met with strong, almost polemical reaction across the LGBT spectrum. An array of organisations from different sectors of the community representing differing views made submissions to the Freedom of Conscience Amendment Bill. There were organisations who took polar opposite views and they attempted to outline their rationale in either their support or opposition to the Bill. A sample of some of these organisations is included below which provides a flavour into just how divided and strong the reaction has been. As an appendix to the Bill, there were questions which requested that organisations respond to.

The submission of the Northern Ireland Public Service Alliance (NIPSA) immediately drew upon the construction of the questions. They refused to answer them directly as they believed them to be ‘unethical and biased’ and ‘framed in a manner that will support the proposed amendments’.[139] Upon examining the appendix questions, it is a criticism which contains substance. Major elements contained in some questions include ‘do you believe it would be appropriate’ and ‘Do you think that gay rights are more important than religious rights’. These loaded questions have the potential to draw the respondent in a certain direction, influencing their decision and response. They are tainted with bias and therefore not fully equipped to illicit a neutral response.

In response to the consultation document itself, NISPA take a radical view in that they not only steadfastly reject the proposals, they highlight potential for far reaching consequences. They outline that the introduction of the Bill would be a ‘retrograde step in equality law’ and markedly weaken protection for LGBT individuals against discrimination on the grounds of sexual orientation.[140] Also, they highlight how it would be inconsistent with other areas of equality law in Northern Ireland and with the approach adopted in other parts of the UK.[141] The most striking of consequences NIPSA highlight is in their belief that the introduction of the amendment has the potential to not only weaken protection for LGBT individuals, but also their family members.[142] Their analogies include private landlords refusing a gay couple rented accommodation, or even enabling them to forcibly evict that couple or mortgage lenders refusing a mortgage to a couple due to their sexuality. It may even extend to a jeweller refusing a gay couple when attempting to purchase a ring.[143]

There is a temptation to dismiss NIPSA’s concerns around the consequences of the amendment. They appear implausible, or at least exaggerated. Mr Givan explicitly demonstrates what the amendment does not mean by providing scenarios. He states that the proposed legislation would mean that an evangelical grocer would not be permitted to refuse to sell apples to a gay man. It would mean a Muslim printer would not be allowed to refuse to print brochures publicising coffee tables made by a lesbian cabinet maker. The fundamental point in the amendment is being allowed to refuse something which is seen to be ‘endorsing, promoting, or facilitating’ against a person’s deeply held views. These scenarios show such a threshold would not be reached in those specific circumstances.

This in backed up by in the submission of the Christian Institute, a non-denominational charity ‘committed to upholding the truths of the bible’[144]  who strongly favour the spirit of the proposed amendment, although not so much the substance. They state that the amendment would not be a ‘blank cheque to discriminate’.[145] They take the view that the proposed amendment provides a better balance of rights as opposed to the current system where there is a hierarchy of rights tipped in favour of sexual orientation discrimination.[146] They believe the current system provides a sword against religious views and not a shield and therefore feel there needs to be a rebalancing. However, they state that any regulations must be tightly defined as not to disproportionately affect the rights of others.[147]

Nonetheless, in the absence of implementation of the legislation, it is impossible to predict its future interpretation. Possibly this is precisely NIPSA’s point in that there is potential for the law to develop to encompass a much wider incorporation of circumstances where something would be seen as ‘endorsing, promoting or facilitating’ views which someone fundamentally disagrees with. This is what is referred to by Robert Wintemute as the beginning of a ‘slippery slope’.[148] He was speaking in the context of the Ladele ruling but was analysing if the inclusion of an exemption clause within anti-discrimination law would lead to possibility of future extension into other areas, including sex and race.[149]

Extending beyond the religious sphere into what they term ‘unfair dilemmas’, the Christian Institute provide examples where they state it would not be just to refuse service objectively. For example, an Irish Republican architect required to accept a contract to design an Orange hall or a Unionist photographer required to accept a contract as the official photographer for an Easter Rising celebration.[150] These examples are perhaps the most telling of the future direction of the Bill. Extension into these types of scenarios may represent the ‘slippery slope’ Wintemute refers to. They may signify the beginnings of descent into unfettered and wholesale claims of conscience, unrestrained due to the lack of clarity and certainty in the Bill.

Amnesty International stated that rather than being a solution to clashing rights, as the Consultation Document seeks to be, the proposals are instead ‘a recipe for significant reduction in rights protections’[151] Furthermore, they suggest that their introduction would lead to a ‘two-tier system of protection against discrimination. The main substance of their submission is the concerns over human rights compliance and deem the proposals both too broad and too vague, making it likely ‘fall at the first hurdle’.[152] They explain their position that the Bill is not necessary as a reasonable balance has already been struck and proceed to call for its withdrawal.[153]

The Equality Coalition is a broad alliance of non-governmental organisations.[154] Their position equally clear in the rejection of the proposed conscience clause. Their grievances include the opinion that the Bill is drafted very broadly providing legal cover to discriminate and the wide extent of the Bill.[155] This extent means that a strongly held religious belief, no matter how extreme, would be sufficient to engage the protection of such a clause.[156] Most notably is their assessment that the premise behind the proposals could lead to an extension into other equality categories. This includes the possibility of an objection arising on the grounds of sexual relations outside of wedlock, divorce or even relationships between people of different ethnic groups.[157] This possibility is not remote, only taking an individual to interpret biblical scriptures more rigidly for it to arise.

The Catholic Church[158], took a measured approach in their submission. While recognising the principle of accommodating freedom of conscience and broadly supporting the Bill, they also say that any legislation should be framed to ensure it is not ‘unjustly wide’ or claims of conscience are exercised that are ‘spurious or superficial’.[159] They concede that the right to freedom of conscience and religion is not an unlimited right and state that there is a requirement for reasonable accommodation to address an imbalance of rights. Thus, the Catholic Church is recognising the requirement for a fairer balance to be struck but notes that the proposed Bill has the possibility of creating ‘wide scale and unchecked discrimination against members of the Gay, Lesbian and Bisexual community’.[160] This is an interesting viewpoint from such a prominent proponent of freedom of conscience. The Catholic Council appear to concede that there is potential for the Bill, in its current form to unjustly discriminate against members of the LGBT community. Recommendations for avoiding such discrimination include the proposal that the Bill should be ‘rigorously examined, debated and tested to ensure it does not give rise to a wider application than would be just, balanced or intended’.[161] A suggestion includes strengthening exceptions in current legislation by establishing reasonable and verifiable tests for the claim to conscience being made.[162] It would be interesting to see how these tests would work in practice and how effective they would be in rooting out ‘superficial’ claims of conscience. Also it is suggested the inclusion within the legislation of obvious and foreseeable circumstances that may arise on a case by case basis, whilst excluding others.[163] Just how effective including a list of circumstances where conscience may be legally exercised may prove problematic. Specific occasions where a possible exercise of conscience is potentially boundless.  It has the potential to create uncertainty or confusion rather than clarifying and may not be the solution to resolving what is essentially an extremely complex balancing exercise.

(Northern Ireland Catholic Council on Social Affairs [ A sub-committee of the Council for Justice & Peace of the Irish Bishops’ Conference], 2015) accessed 23 February 2017

Analysis of the submissions

The Northern Ireland Human Rights Commission (NIHRC), are a statutory body established under law to ‘review the adequacy and effectiveness of law and practice in relation to human rights.’[164]  Their response is included in Chapter 3 in the analysis of the legality of the Bill from a human rights perspective.

It is unsurprising that amongst the various organisations discussed, there is no meeting of minds about the proposed introduction of the Bill. This is not remarkable considering the fundamental and ideological differences between the different organisations. What is of interest is the reservation shown by some groups, including the Catholic Church towards the Bill in its current form. It could be argued that their lukewarm response to the consultation demonstrates that whilst they support the spirit of the Bill, they do have reservations. Most defining is the apparent departure from instances of conscientious objection based on religious grounds into an array of other grounds. It is quite possible theBill has the potential not to resolve instances of conflicting rights, but to exacerbate them.

The next section will briefly examine, from a human rights perspective the approach the European Court takes in resolving the difficulty with contrasting or competing rights. It will also examine some aspects of the law to discover how the concept of conscientious objection operates and this can teach anything about the potential impact of this Bill, if enacted.

Chapter 3

3.1 – When Convention Rights Collide- The European Influence

To understand how conflicting rights are addressed, it is crucial to be aware that most Convention rights are not absolute, but qualified by limitations such as in the interests of public safety, for the protection of health or morals or for the protection of the rights and freedoms of others.[165] This section will examine how courts approach these types of cases and how they attempt to resolve them with the various jurisprudential doctrines at their disposal.

The European Convention on Human Rights and Fundamental Freedoms contains rather vague rights for individuals.[166] However, the European Court of Human Rights have sought to flesh out these rights through the interpretation of the Convention articles. The incorporation of the Convention into domestic law through the Human Rights Act 1998 has given a special status to freedom of religion and conscience.[167]  The freedom to manifest one’s religion is an important right under Article 9.[168] The right of a homosexual person not to suffer discrimination on the grounds of their sexual orientation is equally an important right under the Articles of 8 and 14.[169] It has been said that neither is more intrinsically more important than the other. Neither trumps the other.[170] The crucial matter is the weight that will be attached to each right depends on the particular circumstances of a case.[171]

There have been lengthy debates in Parliament concerning the conflict of conscientious religious objection against respect for the principle of equality.[172] Additionally, there has been a substantial amount of case law concerning acknowledgement of trying to balance these type of conflicting rights. There are many different issues and cases that have come before the ECtHR where they have attempted to reconcile clashing rights. One prominent example is that of Ladele v London Borough of Islington.[173] This case focussed on the refusal of Ms Ladele, a registrar employed by the local authority to officiate at civil partnerships between same sex couples. She stated that this was contrary to her religious beliefs and was subsequently disciplined.[174]

The Court acknowledged that the local authority’s requirement that all registrars perform civil partnership functions without doubt put the claimant’s beliefs at a disadvantage.[175] However, it was found that the ‘overarching commitment of the local authority to the promotion of equality and diversity’ could not be challenged by right of religious beliefs.[176] The implementation of such a commitment could not be challenged by Ms Ladele as it was a legitimate aim to have such a policy, therefore the Court found it did not impinge upon her religious beliefs. Therefore, the Court dismissed her claim by finding that she was neither directly or indirectly discriminated against.[177]

The case went before the European Court jointly with others with other similar competing rights type cases in Eweida & Others v The United Kingdom.[178] The Court agreed with the state’s decision and in doing so asserted the importance of the doctrine of the margin of appreciation. This is a product of European jurisprudence that provides a level of discretion or ‘freedom for each state to regulate its own activities (…) without being subject to review by the Court’.[179] In Eweida, it was said that the Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights.[180] The doctrine does not operate alone without restraint, but goes hand in hand with the principle of proportionality. The decision was significant in that it reinforced the idea of the margin with the result that left ‘member states significant latitude to follow their own paths in regulating controversial matters of religious symbolism and the clash between religious freedom and anti-discrimination norms’.[181]

Perhaps an insight into the eagerness of the Court to afford such discretion to member states can be found in the dissenting judgements of the case. The judgements of Judges de Gaetano and Vucinic contained language described as ‘shocking’[182] This included terms such as ‘backstabbing’[183] and ‘the road of obsessive political correctness.[184] There appeared to be a ‘disturbing hostility to the very idea that gay and lesbian rights could be considered human rights’[185] and reveals the intensity of feeling towards trying to reconcile the irreconcilable.

This is an example of a case where the European Court is placed in an apparently impossible position in balancing the rights of both parties.[186] It is argued that there was a balancing in this case but it was achieved through a different approach. To understand how this balancing was achieved, the starting point has to be ‘the right to hold a belief is absolute but the right to refuse service on the basis of that belief can legitimately be curtailed’[187] It is irreconcilable to balance the right to act out a discriminatory belief at work with the belief not to be discriminated against. However, a balance can be achieved between freedom of conscience and anti-discrimination. A recognition that a person can legitimately hold a view that could be classified as discriminatory, such as the belief that homosexuality is a sin, is perfectly acceptable.[188] The balance is struck in curtailing the right to refuse service due to that belief.[189] This analysis may fail to satisfy proponents of the amendment clause. They may argue that it does not resolve the conflict perceived where a service provider could ultimately be faced with the choice of acting in contravention of their religion or losing their livelihood.

Proportionality is another policy of European jurisprudence, affecting the qualified rights where a Convention right may be interfered with in the securing of a legitimate aim.[190] Providing such an interference is not excessive, it may be justified.[191] The most basic analogy to understand this concept are the comments by Lord Diplock in R v Goldstein where he stated ‘you must not use a steam hammer to crack a nut, if a nutcracker would do.’[192] It will always be necessary to weigh decisions on the proportionality balance where Convention rights are engaged.[193]A restriction will be proportionate only if the objective behind the restriction justifies the interference with a Convention right.[194] From a discrimination perspective, the law invites the taking of a complaint, that is in all other respects valid, and allows it to be overridden in the name of some competing objective.[195]

The Belgian Linguistic Case[196] provided a definition of discrimination when it stated that Article 14 of the Convention is violated ‘when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.’[197] In using the ‘Goldilocks doctrine’ by finding the bowl of porridge that is not too hot, nor cold, but just right,[198] proportionality is clearly a useful and long established tool of European jurisprudence in making a decision based on the desire to strike a balance by reaching the most equitable decision for all involved. This can only be done by taking account of all the circumstances of a case.

3.2 – The Right to Legally Object Consciously in Other Areas of Law

A prominent justification for the reliance on conscience is that claims of conscience are entitled to be exempt from the law as ‘a person it the grip of conscience cannot obey that law without betraying his deepest, most identify defining commitments’.[199] This rationale is not without criticism, mainly due to the potentially unlimited and subjective nature of conscience. Conscience is defined entirely by a description of ‘the internal mental state of the agent who is in its grip’.[200] There are already well established principles in law that provide exemptions on the basis of conscientious objection. These represent an exercise in balancing the rights of the objector with those of others. This section will examine perhaps two of the most salient areas where the debate around conscientious objection has been most abounding, abortion and conscription to military service.

Abortion

The Abortion Act 1967 in England and Wales states that ‘no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection’.[201] The problem arises when determining the circumstances upon which an individual may be allowed to exercise their objection on the grounds of conscience. Conscience must be based on principle rather than prejudice. [202] Any law containing such an exemption would become infeasible if there were no criteria to permit such an objection.[203] It would have the potential to lead to non-compliance and the defence of conscientious objection raised. It is a hard and complex issue.[204] Shah, Farr and Friedman suggested two criteria for overcoming this complexity. These are

1. Is the objection deeply held and can the objector give a coherent account for it?
2. If we allow for the objection, will we infringe the rights of others and/or is allowing the objection likely to have a serious negative impact on the quality of the lives of others?[205]

Using the example of abortion, it is useful to attempt to apply this criteria to determine if it would be effective. The Abortion Act 1967 seeks to address when conscientious objection may be exercised. In relation to the first requirement, the legislation places the burden of proof on the objector to demonstrate the depth of their objection and give an account for it.[206] To comply with the second aspect, the legislation does not permit conscientious objection where there is a ‘duty to participate in treatment which is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman’.[207]

What level of participation is required to be seen to be endorsing, promoting or facilitating an abortion? This is about finding the extent to which somebody who in going along with something, would disregard a deep aspect of their identity.[208] This issue is one of defining the parameters of what is ‘going along’ and what is remaining neutral. The case of R v Salford Health Authority Ex p. Janaway[209]is perhaps the most appropriate illustration. A receptionist contended that she was participating in the abortion process by typing a letter to a patient containing an appointment with a consultant, with the outcome that an abortion would be performed. The question the court sought to answer was what level of involvement must there be to be deemed to be involved in the process? Although acknowledged that Mrs Janaway had played a role in the process of abortion as a ‘cog in the wheel’,[210] the claim was dismissed after the court concluded that there must come a stage where something is considered too remote.[211]   This rationale may be transferred to the commercial context in the discussion over the Freedom of Conscience Amendment Bill- could a service provider be considered too abstract or peripheral to be seen to be endorsing, promoting or facilitating in something that went against their consciences? The answer, on the logic of Janaway, is probably yes.

Military Service

The issue of conscientious objection in the military sphere is not a new one. At the height of the First and Second World Wars, conscription was used to increase the capacity of the military. It was regarded in many quarters as deeply unpopular.[212] The Military Service Act 1916 included a section where an application could be made to a Tribunal on the grounds of conscientious objection.[213]  The law however did nothing to alleviate the societal attitudes existing at that time that conscientious objectors were despised and regarded as an ‘aberrant form of manhood.’[214] Today, most European countries have adopted and refined their laws in relation to military service and the recognition of conscientious objection.[215]  A glance at the European approach however shows a desire for conscientious objection to be left to each individual country. The landmark case of Grandrath v Federal Republic of Germany[216] found that there was no right to exemption from military service but each state may decide whether to grant such a right.[217] In the granting of the right to conscientiously object, a member state must recognise that such a right must not be discriminatory.[218]

Of those countries that have adopted the principle of allowing for conscientious objection in times of war, problems have been encountered. One of these became apparentduring the Second World War finding a balance in accommodating the rights of objectors and ultimately winning the war. One of the solutions eventually found was that employment could be found in a civilian capacity for these individuals in the agricultural or forestry sectors.[219] This balance ensured that at least indirectly, there was still a contribution to the overall war effort, but this contribution did not impact upon their outright objection to war. A fundamental problem with conscientious objection is the ‘unscrupulous characters’ taking advantage of conscientious objection arrangements to avoid military service.[220] This problem could potentially be replicated in the context of the Freedom of Conscience Amendment Bill. It would surely be impossible to root out any illegitimate claims of conscience of those for whatever reason, refuse to serve a customer and then effectively hide behind the law to absolve them of liability.

Based on the above arguments, it is apparent that the law has often struggled to find an appropriate balance between possessing the ability to legitimately object without compromising on the overall purpose of the act which is being objected to. This is evidenced both by the reluctance of the European Court of Human Rights to properly define and recognise conscientious objection and the willingness to leave it in the hands of individual member states through the doctrine of the margin of appreciation. Combined with a courts struggle to determine the ‘too far removed’ aspect and of separating the genuine claims of conscience from the bogus or what the Catholic Church refer to a ‘superficial claims’[221], it is apparent that these difficulties will transfer and possibly deepen in a commercial setting. This could be, in part, be caused by addressing the dilemma of individual harm. In the examples above, there is less likelihood of harm being caused to an individual on the basis of a conscientious objection.

Medically, if properly administered, a patient need not even know that a medical professional has objections to the practice of abortion. It would simply involve another member of staff possessing no such objections to carry out the procedure. Militarily, it is obvious there is no individual harm caused by the objection to participation in war. However, in a commercial context, it is likely that the prospect for individual harm is significantly increased. This is evidenced by transactions on a one to one basis, such as those involving Ashers Bakery and Gareth Lee where the harm caused by rejection of service was the feeling of making the plaintiff feel like a ‘second class citizen’.[222] However, it must also be borne that a concept of individual harm within conscientious objection is not confined to the two examples above. This is no more obvious than in the example of a parent objecting to their child’s medical treatment.[223] It is without argument that the potential harm suffered to a child as a result of a conscientious objection would be much more severe than that of someone who was refused service in a shop. This demonstrates the complexity and multi-faceted nature of conscience and serves as a warning not to address one or two areas in isolation.

The following section will comparatively analyse a jurisdiction where a similar ‘conscience clause’ has already been enacted.

Chapter 4

4.1 – An American Perspective: A Comparative Analysis

As it has not been enacted, it is difficult to envisage the effect and potential ramifications of the Freedom of Conscience Amendment Bill in Northern Ireland. Therefore, to aid understanding, it is beneficial to comparatively examine a jurisdiction where a similar provision was introduced. This section will briefly consider the introduction of countrywide religious freedom laws in the United States and assess how the Indiana Act has become so controversial.

The USA is a ‘deeply religious nation’.[224] A countrywide Religious Freedom Restoration Act (RFRA) was enacted in 1993 with the intention to provide a standard that was far more protective of religious freedom.[225] It is said that this Act represented the ‘crumbling of the wall’ that had built up between faith and business.[226] The intention of Indiana introducing their own Religious Freedom legislation was to enable people with sincerely held religious beliefs, including in the commercial sector, a defence under discrimination law when refusing to provide service for a customer. It stemmed from developments in the case law appearing to dilute the protections provided for in the countywide legislation. The RFRA came about as a result of the seminal case of Oregon v Smith[227].

This case concerned individuals who were dismissed from their posts in a rehabilitation organization because they ingested peyote, an illegal hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church.[228] Subsequently, their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees dismissed for misconduct in the workplace. This reversed earlier decisions that had held that government could not substantially burden the practice of religion without compelling justification.[229] The essence of the decision in Smith meant the law would allow the exercise of religion to be hindered as long as that hindrance was only incidental.[230] There was a widespread feeling that the decision ‘virtually removed religious freedom’.[231] The RFRA was passed by the US Congress by a vote of 97-3 and signed into law by President Clinton,[232] restoring the position to pre Smith.  This new law reestablished the requirement of the government having the right of interference only if there is a ‘compelling interest’ to do so.[233]

In 1997, in City of Boerne v Flores[234], it was deemed that Congress had exceeded their constitutional authority by extending the legislation to the states and ruled that it should only apply federally.[235] This case regarded the refusal of a permit to a Catholic Church to expand, citing state zoning laws. The Church argued that the refusal did not sufficiently represent a ‘compelling interest’ under the RFRA and therefore was a violation. The Supreme Court exercised a reluctance to apply the compelling interest test, as to do so would compel it to infringe on individual states authority by overturning planning and potentially many other internal state regulations.[236] This decision acted as a catalyst for individual states to enact their own religious freedom legislation, and as of 2015, there was 21 who had done so.[237]

In 2014, the Supreme Court of the United States in Burwell v Hobby Lobby Stores Inc[238] extended protection of religious freedom to for-profit organisations. Hobby Lobby is a retail chain that objected to having to comply with a law that required organisations to cover certain contraceptive provision for their female employees.[239] The Supreme Court extended the interpretation of the act to include companies as ‘persons’.[240] There was a view that the drafters of the 1993 legislation would not have wanted it to extend to for-profit organisations due to ‘difficulties in ascertaining the beliefs of large publicly owned corporations.’[241] The majority of the court rejected this by concluding that there was no evidence to suggest there would be any problems in determining the sincerity of a religiously held belief.[242] In dissenting comments, it was described as a ‘decision of startling breadth’.[243] The breath of the decision is measured with the reality that a corporate entity, by its very nature, is an artificial entity.[244]  It is difficult to comprehend how such an entity could exercise freedom of conscience and thus is logical to conclude that it is indeed a decision of broad expansiveness.

Indiana is a politically conservative stronghold.[245] Conservatives saw the enactment of a state RFRA as an opportunity to insulate Christians against the progression of LGBT and same sex marriage rights.[246] The Indiana RFRA contains the key provision that a Government entity ‘may not substantially burden a person’s exercise of religion.’[247] The only exceptions where the State can substantially burden is if it is both in the furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling government interest.[248] This is reflective of the provisions in the nationwide RFRA. However, Section 9 of the Indiana Act states:

A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.[249]

The crucial factors in this provision are twofold. First, a government entity does not have to be a party in proceedings. Also, the expansion from being ‘substantially burdened’ to ‘likely to be substantially burdened’. These represent a very low threshold for establishing a defence under either civil or criminal law.[250] Such is the width of the act, there is potential for someone to pursue legal action even if their religious exercise isn’t currently burdened or burdened in a significant manner.[251]

Section 7 (3) of the Act fully utilizes the decision in Hobby Lobby by expanding the definition of ‘individual’ to include companies, corporations, firms and societies.[252] Supporters of the law wanted to provide assurance that it created no right of discrimination as the elimination of such discrimination would always satisfy both the ‘compelling interest’ and ‘least restrictive means’ tests which would not permit the exemption of believers from anti-discrimination laws.[253] However, the Hobby Lobby decision undercut those assurances.[254] Although the decision affirmed the elimination of racial discrimination, it mentioned nothing of both gender and sexual orientation discrimination.[255]

The introduction of the Act was met with significant disappointment. Reaction was ‘swift and overwhelmingly hostile.’[256] It was described as a Bill that “codifies hatred under the smoke screen of freedom and jeopardizes all that has been recently accomplished”[257] Others condemned it as an enactment to allow discrimination not just of the LGBT community, but of racial minorities and women also.[258] Other states declined to follow the path of Indiana. The then Governor of Arizona vetoed a similar law, stating her belief that the Bill had ‘the potential to create more problems than it purports to solve’.[259] An example of the fallout was the signing of an Executive Order by the Governor of Connecticut, Dannel Malloy, banning state spending on travel to Indiana denouncing it as ‘disturbing, disgraceful and outright discriminatory’.[260]

A pizzeria establishment in Indiana possibly provides the most illustrious anecdote on the depth of feeling following the RFRA introduction. Asked by a local television station their position, the proprietor responded ‘if a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no … We’re a Christian establishment.’[261] What followed was a torrent of abuse, death and arson threats and a temporary closure of that business.[262] Although the threats are criminal and to be condemned, they are a specimen of the level of hostility towards the law in many quarters.

In a response to the backlash over the law, lawmakers relented and pledged to clarify it though an amendment.[263] This amendment would include a guarantee that would ban discrimination of members of the LGBT community.[264] This was achieved through the prohibition invoking the law to justify public or private discrimination in housing, employment, goods and services.[265] Governor Mike Pence rationalised the amendment by claiming it was a clarification to a ‘subject of great misunderstanding’.[266] The amendment now reads

This chapter does not: 8 (1) authorize a provider to refuse to offer or provide services, 9 facilities, use of public accommodations, goods, employment, 10 or housing to any member or members of the general public 11 on the basis of race, color, religion, ancestry, age, national 12 origin, disability, sex, sexual orientation, gender identity, or 13 United States military service;[267]

Essentially, this means that the law may not be invoked as a defence to discriminate, amongst others, members of the LGBT community.[268] Arguably, this represents a major climbdown in the original intention and spirit of the law. The text of the amendment suggests a complete reversal as service providers could no longer refuse a customer on the basis of their sexual orientation. It removed their defence of objection of conscience and thus rendered the initial act redundant.

Reflections on the Indiana model

Although the language is different, the terms ‘compelling interest’ and ‘least restrictive means’ seemingly mirror the European approach. ‘Compelling interest’ appears similar to the doctrine of ‘as necessary in a democratic society and ‘least restrictive means’ echoes the proportionality doctrine. Where it departs from this comparison is in the balancing- the Indiana model appears to place more of an onus on the protection of religious expression to the detriment of others by offering a defence in law. This represents more of a rights bias rather than a rights balance.

The element of hindsight was not required to foresee all the possible repercussions and consequences deriving from this legislation. It should have appeared obvious that there would have been a substantial proportion of the population opposed to such an Act, and it had the potential to cast a negative light on the entire State, having repercussions for its reputation and everything a poor reputation entails.

Perhaps the most damming evidence of the Act’s effectiveness is contained in the subsequent amendment to it. In an apparent attempt to quell the backlash, Governor Pence described the RFRA as ‘not being broken, but it is imperative to fix it anyway’ and proceeded to push for a clarifying Bill [269]. This seems such an illogical position and appears a haphazard attempt to plug the gaping holes in a law that was inherently flawed and riddled with uncertainty. It is a weak argument to suggest that such a significant amendment to legislation, only recently enacted, was because of misunderstandings. If this were the case, the more appropriate action may have been to educate the public to rectify those misunderstandings. A sceptic may conclude it was a frail justification, one made to preserve credibility after such a momentous about-turn.

4.2 Exploring the Legality of the Freedom of Conscience Amendment Bill

There are fundamental questions that need to be answered around the legality of the proposed Freedom of Conscience Amendment Bill. The question of whether it would survive judicial scrutiny is paramount, not just in the context of the Convention but also in relation to the UK legislation itself.

Human Rights Considerations

The legislative competence of the Assembly is limited by the European Convention on Human Rights.[270] If a provision of an act of the Assembly violates any aspect of the Convention, it will be deemed to be outside it’s legislative authority.[271] Therefore, all proposed Bills need to be proofed against such possible violations[272] and no member of the assembly or minister may do any act that is incompatible with the Convention.[273] Consequently, it is integral to discover if the enactment of the proposed conscience clause would be compatible with human rights obligations. To address this, it is necessary to explore the legislation. The Northern Ireland Act 1998 states

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—

1. is incompatible with any of the Convention rights[274]

In addition to this, the Human Rights Act 1998 states

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights[275]

Striking down secondary legislation

It is known that to strike a constitutional balance, with primary legislation, courts have no power to strike down or disapply an incompatible provision.[276] Instead, they can only issue a declaration of incompatibility.[277] However, any devolved legislation is subject to the provisions of the Human Rights Act and therefore any infringement of the Convention can be declared void and have no effect.[278] This means that any legislation passed by the Northern Ireland Assembly is open to challenge on the basis that it is in conflict with one of the Convention rights, and thus outside their legislative competence.[279]

Briefly exploring the hypothetical scenario that the exemption clause will be passed, in its current form, it is still difficult to envisage it working on a practical level.  This is most evident in the context of Article 14 – the right not to be discriminated against. Although it is known that Article 14 has no autonomous standing, and can only be invoked if it falls within the ambient of another Convention provision, the Court has increasingly relaxed this requirement of ambience through the insertion of Article 14 into its case law.[280] Therefore it is entirely plausible that a future case of discrimination may be successful on the basis of discrimination on the grounds of sexual orientation, irrespective of the exemption clause and this is reinforced by the possibility that any such case will be taken in tandem with another Convention provision. This represents the possible myriad of complexities that may flow from successful implementation of the conscience clause.

The Northern Ireland Act

The Northern Ireland Act 1998 imposes a statutory duty on public authorities when carrying out their functions to have due regard to the need to promote equality of opportunity. This includes ‘between persons of different religious belief, political opinion, racial group, age, marital status or sexual orientation’.[281] Section 75 of the Act is extensive in that the levels of promotion of equality are multi-layered. This includes provision for equality schemes, screening, impact assessment and an enhanced level of participation.[282] Key highlights of equality mainstreaming include the requirement that every public authority having an equality scheme in place that specifies a plan for the execution of their duty and are overseen by the Equality Commission for Northern Ireland.[283] There are measures designed to root out inequality in new and existing policies through the detection of adverse equality impacts and considering ameliorating policies.[284]

In addition, there should be a process of consultation with those likely to suffer such an adverse impact, allowing these groups of people the ability to both influence existing government policy and shape future policies.[285] This level of equality protection and promotion has been described as the most innovative, standing out from other attempts at equality mainstreaming.[286] The extensiveness under section 75 therefore presents a significant obstacle for the Bill’s proposer as such an Amendment would clearly not be a promotion of equality for the LGBT community.

The Northern Ireland Human Rights Commission submitted a response to the consultation document. Their approach is in explaining that whilst the right to hold beliefs is absolute, the right to manifest them is qualified.[287] They have stated that the matter of balancing rights has been given significant consideration by domestic courts and crucially, the European Court of Human Rights has ruled that the UK legislative framework strikes a balance under the margin of appreciation doctrine.[288] Their advice includes the opinion that the proposed clause is ‘retrogressive’.[289] Compellingly, they state that the introduction of a conscience clause ‘that involves discrimination against a protected group does not have the protection of human rights law’.[290] Presumably, in arriving at this, the NIHRC considered the impediments of legislative competence and regarded it, along with other human rights challenges as an insurmountable hurdle to successful implementation.

Section 75 and constitutionality

The inclusion of a sexual orientation ground for protection under Section 75 is remarkable for two reasons. First, it was originally included in the Equality and Human Rights section of the Good Friday Agreement, an international treaty between the United Kingdom and Ireland,[291] registered at the United Nations. It was the first ever reference to sexual orientation discrimination in any international agreement.[292] Second, this ground has been enshrined in an Act of Parliament that has been described as ‘in effect, a constitution’.[293] It is therefore tempting to pursue a constitutionality argument to its logical conclusion. A piece of legislation that goes against such a key equality provision in a constitutional act could spark a debate that goes to the heart of the uncodified British constitution. It is a mere example of how far such an enactment could create a quagmire of unanticipated potential consequences.

The achievement that the Good Friday Agreement was the first ever international agreement to incorporate anti sexual orientation discrimination would be abolished. It would undoubtedly portray Northern Ireland in a damaging light internationally, a society that promised members of the LBGT community non-discrimination and then reneged. Upon implementation of the amendment, the recognition of our perceived outward looking, progressive society following the Belfast Agreement would be a casualty in the drive towards ‘freedom’.

It is clear that the Bill would not be legal and would fail implementation due to the protective mechanisms discussed above. The indisputable fact is contained within the comments of the NIHRC, describing the Bill as outside the scope of human rights law. This advice strikes a death blow to the notion of the amendment being human rights compliant.

Conclusion

‘Tolerance implies no lack of commitment to one’s own beliefs. Rather it condemns the oppression or persecution of others’

- John F Kennedy

Supporters of liberal democracy are often content to discuss its virtues such as liberty and tolerance.[294] But perhaps tolerance itself is in short supply as a more abundant display of it could prevent such a complex and needless clash of rights. Tolerance, equality and respect for opposing viewpoints are the only tools that will ensure all rights are accommodated. However, perhaps the public perception of equality is not helped when one side seem to be using it as a weapon against the other, as a type of ‘Trojan horse’ or decoy to achieve their political objectives.[295] This approach only undermines the true value of equality.

It is undeniable that there still exists a societal prejudice towards homosexuality, a hangover of a bygone era. Prejudice proports to be a rational response to some threat or danger[296], and the expression that religious freedoms are being eroded is only one such example. Any victory by the DUP in achieving the enactment of this Bill may prove to them to be a pyrrhic one. Rather than being viewed as a triumph for religious freedom, it would seek to reinforce the international image of Northern Ireland being a backwater of a bygone era where discrimination reined free and all the consequences that emerge from that may be significant. Supporters of the Bill may well be minded learning the lessons from America. Indiana’s law spawned many ‘adverse collateral consequences.’[297] This included widespread condemnation and protests. Beyond damage caused to the LGBT community, the reputational damage was clear, with a perception that the state was unwelcoming and worries about a reduction in revenue from lost tourism or foreign investment, only two examples of the expansive collateral implications that such a Bill would impose.

There are so many scenarios beyond the simple Muslim printer, or indeed cake shop that have the potential to create difficulties with the legislation. It is impractical to cover all such possibilities. Therefore, there is a real danger of situations happening in the future where it comes dangerously close to refusing service to a person because of their sexual orientation.

The chink in the armour of the Bill in its current form is undeniable. It is highly likely that people will express beliefs considered bigoted and then conveniently hide behind the cloak of conscience. This is evidenced by conscientious objection in the military and individuals using it as an escape from conscription. Considering that Tribunals were created for conscription with strict criteria in assessing the validity of a conscientious objection, it is difficult to imagine how an exemption to the current equality legislation will manage to determine such validity of conscience. This argument is cumulatively strengthened in light of the realisation that even when there is clear legislative provision to facilitate matters of conscience, difficulties still occur.

One need not look no further than conscientious objection in the strand of abortion law. Section 4 of the Abortion Act is a definitive and clear piece of legislation. That there have been issues for courts around interpretation and linguistic construction of this section is extremely indicative as to how successful the freedom of conscience exemption would be, where it is not nearly as narrowly defined. To redress the chinked armour analogy, these points may justify summing that the armour is much more than chinked, but rather is vastly exposed.

Exploring the issues around the status of the legality of the Bill is essential. It is evident that the Bill would have great difficulty in passing from a human rights perspective. In recognising protection of sexual orientation within a constitutional statute, it heightens the level of complication in the Bill passing successfully.

It is difficult to imagine how the introduction of the Bill could resolve the issue of conflicting human rights.  This is especially so in situations where the right to manifest one’s religious beliefs collides with the right not to be discriminated against on the basis of one’s sexual orientation. There are already exemptions within the 2006 Regulations, although they do not extend to places of business. Rather than even up the balance between the two sides, its likely effect will be to tip the balance significantly towards members who hold religious beliefs and others. The introduction of this exemption in the legislation has the very real potential to create many difficulties.

For instance, in its current form, there is a danger that the ‘conscience clause’ may be applied indiscriminately and not in the spirit that it was intended. The Catholic Church in its submissions to the consultation document acknowledged this point. The comments from a wide spectrum within civic society that warn of the dangers such a clause would pose are resounding. From the Equality Commission of Northern Ireland’s view that it would give the right to legally discriminate to views in the USA that such legislation legitimises hatred under the guise of freedom, they are abundant. The problems are most lucid in relation to the rectification to the exemptions in the Indiana Religious Freedom Act, exposing both a failure to recognise the depth of feeling in the first instance towards such exemptions and a failure of the law on a practical level.

A slight alteration in the mindset by members of the business community in the realisation that a company is an artificial entity, absent of any conscience, thought and feelings[298] may be all that is required to resolve these types of rights conflicts. Almost three years after the refusal of Ashers bakery to make a cake, they have again been, very recently, placed in a similar scenario, refusing to bake a cake celebrating the engagement of a gay couple from London.[299] This demonstrates the contemporary nature of rights conflicts and accentuates the point that if there is no resolution, these types of conflict will continue to arise.

If members of the business sector who hold genuine religious beliefs can manage to separate those beliefs in the course of their business without any feeling of dilution, they will not have to resort to making such drastic choices such as losing livelihood to retain those beliefs. Realisations that ‘anti-discrimination law is a package deal consisting of reciprocal rights and duties’ [300] could conceivably revise the psyche around exercising those beliefs. Rather than each side embroiled in a rights conflict having a mentality of winning and losing, finding solutions may involve embracing the concept of ‘confident pluralism’.[301]

Essentially, this is the notion that aims to ‘maximise spaces where dialogue and persuasion can co-exist alongside deep and intractable differences about beliefs, commitments and ways of life’.[302] If everyone can resolve how they can live with these deep differences, by ‘protecting the integrity of one’s own beliefs (…) while not depending on coercively silencing opposing views’[303] then the argument for a conscience clause may become redundant.

Perhaps the publication of the Consultation Document represented the unlatching of the lid of the Pandora’s box. Codification of the Bill would spring it open, signifying a monumental and fatal blow to the ideals of compromise, fairness and tolerance.

---

[1] Jeffrey Weeks, Sex, Politics, And Society (1st edn, Longman 1981) 99.

[2] John Bancroft, Human Sexuality And Its Problems (2nd edn, Churchill Livingstone 1989) 303.

[3] [1842] 3 QB 180.

[4] ibid.

[5] ibid [182].

[6] Leslie Moran, The Homosexual(Ity) Of Law (1st edn, Routledge 1996) 38.

[7] This term appeared in Section 11 of the Criminal Law Amendment Act 1885.

[8] Moran (n6) 99.

[9] ibid 23.

[10] Section 61 (Repealed, replaced with Sexual Offences Act 1956).

[11] Criminal Law Amendment Act 1885 and Criminal Law Amendment Act 1912.

[12] Jeffrie G Murphy and Julia J.A Shaw, ‘Punishment And The Moral Emotions: Essays In Law, Morality, And Religion’ [2015] International Journal of Law in Context 92, 102.

[13] Charlotte Knight and Kath Wilson, Lesbian, Gay, Bisexual And Trans People (LGBT) And The Criminal Justice System (1st edn, Palgrave Macmillan 2016) 42.

[14] ibid.

[15] Hugh McLeod, The Religious Crisis Of The 1960S (1st edn, Oxford University Press 2007) 183.

[16] ibid.

[17] ibid.

[18] Knight and Wilson (n13) 40.

[19] Dudgeon v United Kingdom [1982] 4 EHRR 149 [156].

[20]ibid [155].

[21] Dr Raymond Russell, Research And Information Service Research Paper: Election Report: Northern Ireland Assembly Election, 5 May 2016 (Northern Ireland Assembly 2016) accessed 8 November 2016.

[22] ‘The Electoral Office Of Northern Ireland – EONI’ (Eoni.org.uk, 2017) accessed 19 April 2017.

[23] Jonathan Tonge and others, The Democratic Unionist Party: From Protest To Power (Oxford University Press 2014) 133.

[24] ibid 135.

[25] ibid 134.

[26] Catherine Turner, ‘Political Representations Of Law In Northern Ireland’ [2010] Public Law 451, 457.

[27] ibid.

[28] Fintan Walsh, Queer Performance And Contemporary Ireland (Palgrave Macmillan 2016) 46.

[29] ibid.

[30] ibid.

[31] ibid.

[32] Marian Duggan, Queering Conflict (Routledge 2016) 72.

[33] ibid 71.

[34] Tonge (n23) 153.

[35] The Electoral Office Of Northern Ireland (n22).

[36] BBC Radio 4, ‘Law in Action- Gay Cake’ (29 March 2016) Radio.

[37] Secretary of State for the Home Department and Secretary of State for Scotland ‘Report of the Committee on Homosexual Offences and Prostitution’ (cm 247, 1957).

[38] [1982] 4 EHRR.

[39] Knight and Wilson (n13) 48.

[40] Michael Pollak ‘Male Homosexuality – Or happiness in the Ghetto’ in Philippe Ariès and André Béjin (eds), Western Sexuality (Blackwell 1985) 40.

[41] Brice Dickson and Brian Gormally, Human Rights In Northern Ireland: The CAJ Handbook (Hart Publishing 2015) 266.

[42] ibid.

[43] ibid 267.

[44] ibid.

[45] ibid.

[46] Office of the First Minister and Deputy First Minister, Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services in Northern Ireland 7 <http://webarchive.proni.gov.uk/20141007022958/http://www.ofmdfmni.gov.uk/index.htm> accessed 24 November 2016.

[47] ibid

[48] ibid.

[49] ibid.

[50] Russell Sandberg, ‘Gods And Services: Religious Groups And Sexual Orientation Discrimination’ (2008) 10 Ecclesiastical Law Journal 205, 206.

[51] Tony McGleenan, ‘Faith In Equality: The Making Of The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006’ [2010] 3 Irish Employment Law Journal 74, 74-78.

[52] The Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006.

[53] ibid (Section 16 (3)).

[54] Sandberg (n50) 206.

[55] [2007] NIQB 66 [10].

[56] ibid [8].

[57] Office of the First Minister and Deputy First Minister, Getting Equal: Proposals to outlaw sexual orientation discrimination in the provision of goods and services in Northern Ireland (n46)

[58] ibid.

[59] Christian Institute Application (n55) [26].

[60] ibid [42].

[61] Holly Stout, ‘Human Rights: Judicial Review – Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006’ (2008) 133 Education Law Journal 133, 133.

[62] ibid 136.

[63] ‘Joint Committee On Human Rights – Sixth Report’ (Publications.parliament.uk, 2017) accessed 2 February 2017.

[64] [2015] NI Cty 2.

[65] Paul Givan MLA, Consultation On The Northern Ireland Freedom Of Conscience Amendment Bill (Democratic Unionist Party, 2016) accessed 19 October 2016.

[66] ‘Gay Cake’ Row: MLA Attempts To Introduce ‘Conscience Clause’ – BBC News’ (BBC News, 2014) accessed 26 April 2017.

[67] (n64) [3].

[68] ibid [6].

[69] ibid [7].

[70] ibid [16].

[71] ibid [9].

[72] ibid [11].

[73] ibid.

[74] ibid [15].

[75] [2015] NI Cty 2 [42].

[76] ibid [41].

[77] ibid [42].

[78] Ibid [56].

[79] ibid [40].

[80] ibid [44].

[81] ibid [43].

[82] ibid [70].

[83] ibid.

[84] ibid [72].

[85] Alison Bisset, Blackstone’s International Human Rights Documents (10th edn, Oxford University Press 2016) 267.

[86] ibid [75-80].

[87] ibid [81].

[88] ibid [91].

[89] App no. 20471/92 {15 April 1996}.

[90] (n64) [98].

[91] The Sexual Orientation Regulations (n52).

[92] [2016] NICA 39 [102].

[93] ibid [100].

[94] ibid [67].

[95] Lee v Ashers (n64)[40].

[96] Pigott C, ‘It’ll All End In Tiers’ (2017) 165 New Law Journal 9, 9.

[97] Joshua Rozenberg, ‘The ‘Gay Cake’ Ruling Is A Victory For Equality In Northern Ireland | Joshua Rozenberg’ (the Guardian, 2015) accessed 27 January 2017.

[98] Human Rights Act 1998: 1 Jun 2015: Northern Ireland Assembly Debates –                                                              < https://www.theyworkforyou.com/ni/?id=2015-06-01.6.1#g6.79 > accessed 11 January 2017.

[99] BBC, Radio Ulster ‘The Stephen Nolan Show’ (25 October 2016) Radio.

[100] ‘Gay Cake’ Appeal: Christian Bakers Ashers Lose Appeal – BBC News’ (BBC News, 2016) accessed 1 December 2016.

[101] Nolan (n99).

[102] Peter Tatchell, ‘I’ve Changed My Mind on The Gay Cake Row. Here’s Why | Peter Tatchell’ (the Guardian, 2016) accessed 16 December 2016.

[103] ibid.

[104] Emma Fitzsimons, ‘A Recipe For Disaster? When Religious Rights And Equality Collide Through The Prism Of The Ashers Bakery Case’ (2016) 15 Hibernian Law Journal 65, 77.

[105] ibid 79.

[106] [2013] UKSC 73.

[107] Fitzsimons (n104) 75.

[108] Claire Fenton-Glynn, ‘Replacing one type of oppression with another? Same-sex couples and religious freedom’ (2014) 73 The Cambridge Law Journal 31, 33.

[109] ibid.

[110] Hall v Bull (n106) [37].

[111] Lee v Ashers (n64) [44].

[112] [2007] 1 AC 100.

[113] ibid [50].

[114] An infamous example is Ian Paisley’s denouncing of the Pope as the ‘anti-Christ’

Simon Hoggart, ‘Ian Paisley: From Turbulent Priest To Right Honourable Statesman’ (the Guardian, 2014) accessed 1 December 2016.

 

[115] Jonathan Tonge and Jocelyn Evans, ‘Another Communal Headcount: The Election In Northern Ireland’ (2015) 68 Parliamentary Affairs 117, 128.

[116] ‘Sinn Féin ‘Will Block Conscience Clause Bill’ In Assembly – BBC News’ (BBC News, 2016) accessed 19 October 2016.

[117] Paul Givan MLA, Consultation On The Northern Ireland Freedom Of Conscience Amendment Bill (Democratic Unionist Party, 2016) accessed 3 March 2017.

[118] ibid.

[119] ibid.

[120] ibid.

[121] ibid.

[122] ibid.

[123] App no 7992/77 {12 July 1978}.

[124] ibid [235].

[125] ‘Submissions On Behalf Of The Equality Coalition To The Democratic Unionist Party Northern Ireland Freedom Of Conscience Amendment Bill Consultation’ (equalitycoalition.net, 2015) accessed 23 March 2017.

[126] Baroness Hale of Richmond, ‘Freedom Of Religion And Freedom From Religion’ (2017) 19 Ecclesiastical Law Journal 3, 5.

[127] Ilias Trispiotis, ‘”Alternative Lifestyles” And Unlawful Discrimination: The Limits Of Religious Freedom In Bull V Hall’ (2014) 1 European Human Rights Law Review 39, 45.

[128] ibid 48.

[129] Rex Ahdar and Ian Leigh, Religious Freedom In The Liberal State (2nd edn, Oxford University Press 2015) 169.

[130] Fitzsimons (n104) 80.

[131] ibid.

[132] ibid 79.

[133] Nicholas Bamforth, “Sexuality, Morals And Justice: A Theory Of Lesbian And Gay Rights Law” (1997) 277.

[134] ‘OHCHR | Minorities Under International Law’ (Ohchr.org, 2017) accessed 2 May 2017.

[135]  The total was 82 percent – ‘Religion In Northern Ireland’ (Northern Ireland Statistics and Research Agency, 2012) accessed 20 April 2017.

[136] Bamforth (n133).

[137] ibid.

[138] [2013] UKSC 73 [37].

[139] “NIPSA – Freedom Of Conscience Amendment Bill” (Nipsa.org.uk, 2015) accessed 23 February 2017.

[140] ibid.

[141] ibid.

[142] ibid.

[143] ibid.

[144] “Who We Are – The Christian Institute” (The Christian Institute, 2017) accessed 23 February 2017.

[145] “Response Of The Christian Institute” (Christian Institute, 2015) accessed 23 February 2017.

[146] ibid.

[147] ibid.

[148] Robert Wintemute, “Accommodating Religious Beliefs: Harm, Clothing Or Symbols, And Refusals To Serve Others” (2014) 77 The Modern Law Review 223, 245.

[149] ibid.

[150] Response of the Christian Institute (n144).

[151] ‘Submission To The Democratic Unionist Party’ (Amnesty International, 2016) accessed 25 November 2016.

[152] ibid.

[153] ibid.

[154] ‘Equality Coalition | CAJ – Committee On The Administration Of Justice’ (Caj.org.uk, 2017) accessed 21 March 2017.

[155] ‘Submissions On Behalf Of The Equality Coalition (n125).

[156] ibid.

[157] ibid.

[158] Represented by the Catholic Council on Social Affairs.

[159] Northern Ireland Catholic Council on Social Affairs Response to the Public Consultation on the Northern Ireland Freedom of Conscience Amendment Bill (A sub-committee of the Council for Justice & Peace of the Irish Bishops’ Conference, 2015) accessed 23 February 2017.

[160] ibid.

[161] ibid.

[162] ibid.

[163] ibid.

[164] Northern Ireland Act 1998 Section 69 (1).

[165] Baroness Hale of Richmond (n126).

[166] Henry Schermers (2000) ‘European Remedies in the Field of Human Rights’ in Claire Kilpatrick, Tonia Novitz and Paul Skidmore (eds), The Future Of Remedies In Europe (Hart Pub 2000) 205.

[167] Peter W Edge, Legal Responses To Religious Difference (Kluwer Law International 2002) 18.

[168] Black and another v Wilkinson [2013] EWCA Civ 820 [35].

[169] ibid [31].

[170] ibid [35].

[171] ibid.

[172] B. A Hepple, Equality: The New Legal Framework (Hart Publishing 2011) 113.

[173] [2009] EWCA Civ 1357; [2010] IRLR 211.

[174] ibid [955].

[175] ibid.

[176] ibid [956].

[177] ibid.

[178] Applications nos. 48420/10, 59842/10, 51671/10 and 36516/10, Judgement of 15 January 2013 (Forth Section).

[179] Jonathan Law and E. A Martin, A Dictionary Of Law (Oxford University Press 2009) 341.

[180] Eweida & Others (n177) [106].

[181] ‘Proportionality And Irreconcilable Rights’ (2014) 77 Modern Law Review 277, 277-291.

[182] ibid.

[183] Eweida & Others (n177) [5] Joint partly dissenting opinion of Judges Vucinic and De Gaetano.

[184] ibid [7].

[185] Proportionality And Irreconcilable Rights (n180) 286.

[186] ibid 285.

[187] ibid.

[188] ibid.

[189] ibid.

[190] Elizabeth A Martin and Jonathan Law (n178) 432.

[191] ibid 433.

[192] [1983] 1 WLR [155].

[193] Nicholas Dobson, ‘Wednesury In Proportion’ (2015) 165 New Law Journal 11 -13.

[194] Keir Starmer and Iain Byrne, Blackstone’s Human Rights Digest (Blackstone Press 2001) 9.

[195] Sheldon Leader ‘Proportionality and the Justification of Discrimination’ in Bob Watt and Janet Dine (eds) ‘Discrimination Law- Concepts, Limitations and Justifications’ (Addison Wesley Longman Limited 1996) 110.

[196] App no’s 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 {23 July 1964}.

[197]ibid [253].

[198] Mary Arden, Human Rights And European Law: Building New Legal Orders (1st edn, Oxford University Press 2015) 84.

[199] Andrew Koppelman, ‘Conscience, Volitional Necessity, And Religious Exemptions’ (2009) 15 Legal Theory 215, 215.

[200] ibid 216.

[201] Abortion Act 1967 Section 4 (1).

[202] Andrew Grubb, Principles Of Medical Law (2nd edn, Oxford University Press 2006) 768-774.

[203] Timothy Samuel Shah, Thomas F Farr and Jack Friedman, Religious Freedom And Gay Rights – Emerging Conflicts In The United States And Europe (Oxford University Press 2016) 44.

[204] ibid.

[205] ibid.

[206] Abortion Act 1967 Section 4 (1).

[207] Abortion Act 1967 Section 4 (2).

[208] Mary Neal and Sara Fovargue, ‘Conscience And Agent-Integrity: A Defence Of Conscience-Based Exemptions In The Health Care Context’ (2016) 24 Medical Law Review 544, 544-570.

[209] [1989] AC 537.

[210] Margaret Brazier and Emma Cave, Medicine, Patients And The Law (5th edn, Penguin Books 2011) 410.

[211] R v Salford Health Authority Ex p. Janaway (n208) 561.

[212] ‘Conscription: The First World War’ (UK Parliament, 2017) accessed 15 March 2017.

[213] Military Service Act 2016 Section 2 (d).

[214] Lois Bibbings, ‘Images Of Manliness: The Portrayal Of Soldiers And Conscientious Objectors In The Great War’ (2003) 12 Social & Legal Studies 335, 342.

[215] ‘Freedom Of Thought, Conscience And Religion: Refusal Of Pacifist To Carry Out Military Service’ (2006) 3 European Human Rights Law Review 350, 352.

[216] App no. 2299/64 {12 December 1966}.

[217] Ian Leigh, ‘New Trends In Religious Liberty And The European Court Of Human Rights’ (2010) 12 Ecclesiastical Law Journal 266, 278.

[218] ibid.

[219] Rachel Barker, Conscience, Government And War (Routledge & Kegan Paul 1982) 44-52.

[220] ibid 119.

[221] (n158).

[222] Lee v Ashers (n64) [11].

[223] Constance Braithwaite, Conscientious Objection To Various Compulsions Under British Law (W Sessions 1995) 298-314.

[224] Alexis de Tocqueville, ‘Faith (Re)Engages With Business: Cultural, Legal, And Managerial Dimensions’ (2016) 1 Democracy in America 444, 445.

[225] Daniel O Conkle, ‘The Religious Freedom Restoration Act: The Constitutional Significance Of An Unconstitutional Act’ (1995) 56 Montana Law Review 39, 39.

[226] de Tocqueville (n223).

[227] 494 U.S 872 (1990).

[228] Andrew M Koppelman, ‘Gay Rights, Religious Accommodations, And The Purposes Of Antidiscrimination Law’ (2015) 88 Southern California Law Review 619, 632.

[229] ibid.

[230] David Graham, ‘If Indiana’s Religious-Freedom Law Isn’t Discriminatory, Why Change It?’ (The Atlantic, 2017) accessed 28 March 2017.

[231] Robert F. Drinan and Jennifer I. Huffman, ‘The Religious Freedom Restoration Act: A Legislative History’ (1993) 10 Journal of Law and Religion 531, 541.

[232] Douglas Laycock and Oliver S. Thomas, ‘Interpreting The Religious Freedom Restoration Act’ (1994) 73(2) Texas Law Review 209, 210.

[233] Koppelman (n227).

[234] 521 U.S 507 (1997).

[235] 521 U.S 507 (1997) [519].

[236] D. Bridge, ‘Religious Freedom Or Libertarianism: What Explains State Enactments Of Religious Freedom Restoration Act Laws?’ (2012) 56 Journal of Church and State 347, 347-369.

[237] Koppelman (n227).

[238] 134 S.Ct 2751 (2014) (Sup ct (US).

[239] Frank Cranmer, ‘How Relevant To The United Kingdom Are The ‘Religious’ Cases Of The US Supreme Court?’ (2016) 18 Ecclesiastical Law Journal 300, 302.

[240] ibid 303.

[241] Peter Bailey, ‘Can A Company Get Religion – Or Is It Just A Hobby?’ (2017) 359 Company Law Newsletter 1, 2.

[242] ibid.

[243]Burwell v Hobby Lobby (n226) [13-356].

[244] Anna Su, ‘Judging Religious Sincerity’ (2016) 5(1) Oxford Journal of Law and Religion 28, 39.

[245] Frederick Mark Gedicks, ‘Public, Private, Religious? Religious Freedom Restoration Acts In The U.S. State’ (2015) 3 Quaderni Costituzionali (Available at SSRN: https://ssrn.com/abstract=2649509) 1, 1-7

[246] ibid.

[247] Section 8- Religious Senate Enrolled Act No. 101 Indiana Assembly, ‘Senate Bill 101 – Religious Freedom Restoration’ (Indiana General Assembly, 2017) <https://iga.in.gov/legislative/2015/bills/senate/101> accessed 7 March 2017.

[248] ibid.

[249] ibid.

[250] ‘Is The Controversial Indiana Law ‘The Same’ As A Law Backed By Obama?’ (Washington Post, 2017) accessed 30 March 2017.

[251] ibid (this observation is from Eunice Rho, American Civil Liberties Union).

[252] Senate Enrolled Act No. 101 (n246).

[253] Gedicks (n244).

[254] ibid.

[255] ibid.

[256] ibid.

[257] Michael Eckholm, ‘Indiana Law Denounced As Invitation To Discriminate Against Gays’ (Nytimes.com, 2015) check date accessed 24 February 2017.

[258] Gedicks (n244).

[259] ‘Arizona Governor Vetoes Anti-Gay Bill’ (RTE.ie, 2014) accessed 3 April 2017.

[260] John H. Garvey, ‘Two Aspects Of Liberty’ (2016) 91 Notre Dame Law Review 1287, 1294.

[261] ‘A Call For Sanity In The Matter Of Memories Pizza Vs. The Internet’ (Washington Post, 2015) accessed 3 April 2017.

[262] Mark L. Rienzi, ‘Substantive Due Process As A Two-Way Street: How The Court Can Reconcile Same-Sex Marriage And Religious Liberty’ (2015) 68 Stanford Law Review Online 18, 18.

[263] ‘Ind. To ‘Clarify’ New Law Decried As Anti-Gay’ (Washington Post, 2015) accessed 30 March 2017.

[264] ibid.

[265] Gedicks (n244).

[266] ‘Governor Pence Signs Religious Freedom Restoration Act Clarification Bill; Pence: “Resolving This Controversy, Making Clear That Every Person Feels Welcome And Respected In Our State Is Best For IN”‘ (In.gov, 2015) accessed 5 April 2017.

[267] (In.gov, 2015) accessed 5 April 2017.

[268] Robert Katz, ‘Indiana’s Flawed Religious Freedom Law’ (2015) 49 Indiana Law Review 37, 37.

[269] Graham (n229).

[270] Colin Harvey (1999) ‘Human Rights and Equality’ in Robin Wilson (ed) ‘Agreeing to Disagree?’ (Stationary Office 2001) 105.

[271] ibid.

[272] ibid.

[273] David Trimble, To Raise Up A New Northern Ireland (Belfast Press 2001) 103.

[274] Northern Ireland Act 1998 Section 24 (1).

[275] Human Rights Act 1998 Section 3 (1).

[276] Jessica Simor and Ben Emmerson, Human Rights Practice (Sweet & Maxwell 2003) [18-039].

[277] ibid.

[278] David Hoffman and John Jermyn Rowe, Human Rights In The UK (4th edn, Pearson 2013) 50

(This is stipulated in section 6 (2) (c) of the Northern Ireland Act 1998).

 

[279] ibid.

[280] Stefan Graziadei, ‘Democracy v Human Rights? The Strasbourg Court And The Challenge Of Power Sharing’ (2016) 12 European Constitutional Law Review 54, 56.

[281] Section 75 (1) (a).

[282] Anne Smith and Eithne McLaughlin, ‘Delivering Equality: Equality Mainstreaming And Constitutionalisation Of Socio-Economic Rights’ (2010) 93 Northern Ireland Legal Quarterly 93, 101

[283] ibid.

[284] ibid.

[285] ibid 103.

[286] ibid 101.

[287] “The Northern Ireland Human Rights Commission (NIHRC)” (Nihrc.org, 2017) accessed 23 February 2017.

[288] ibid.

[289] ibid.

[290] “The Northern Ireland Human Rights Commission (NIHRC)” (Nihrc.org, 2017) accessed 10 April 2017.

[291] ‘The Agreement (10 April 1998)’ (Government Publications, 1998) accessed 10 April 2017.

[292] Dickson & Gormally (n41) 383.

[293] Lord Bingham in Robinson v Secretary of State for Northern Ireland and Others [2002] UKHL32 [11].

[294] Raphael Cohen-Almagor and Yitzhak Rabin, Liberal Democracy And The Limits Of Tolerance (University of Michigan Press 2000) 1-23.

[295] ‘Gerry Adams Criticised For Calling Unionists ‘Bastards’ (The Irish Times, 2014) accessed 2 February 2017.

[296] John Boswell, Christianity, Social Tolerance, And Homosexuality- Gay People In Western Europe From The Beginning Of The Christian Era To The Fourteenth Century (1st edn, University of Chicago Press 1980) 7.

[297] Scott C. Idleman, ‘Religious Freedom Restoration Act: Pushing The Limits Of Legislative Power’ (1994) 73 Texas Law Review 247, 334.

[298] Rex Ahdar, ‘Companies As Religious Liberty Claimants’ (2016) 5 Oxford Journal of Law and Religion 1, 2.

[299] ‘Ashers Refuses to Make Gay Engagement Cake – Belfasttelegraph.Co.Uk’ (BelfastTelegraph.co.uk, 2017) accessed 2 May 2017.

[300] Dr Alice Donald and Dr Erica Howard, ‘The Right to Freedom of Religion or Belief and Its Intersection with Other Rights’ (ILGA-Europe, 2015) accessed 4 April 2017.

[301] A term conceived by John Inazu, Professor of Law and Religion at Washington University.

[302] Steve Sanders, ‘RFRA’s And Reasonableness’ (2016) 91 Indiana Law Journal 243, 245.

[303] Prof John D. Inazu, ‘A Confident Pluralism’ (2015) 88 Southern California Law Review 587, 591-592.