This guest post is by Sean Molloy, a Principal’s Career Development Scholar in Law at the University of Edinburgh. Sean completed his LLB Law at Queen’s University Belfast, continuing to read for an LLM in Human Rights Law and Transitional Justice at the Transitional Justice Institute. Following a period working as a research assistant for a human rights solicitor, Sean began his PhD research at Edinburgh in September 2013. He edits the monthly Global Justice Academy Newsletter, and is a founding member of the Global Justice Society.
Freedom of Conscience in Northern Ireland
In December 2014 DUP MLA Paul Girvan introduced a Freedom of Conscience Bill aimed at allowing businesses to refuse services to a customer if they feel it is against their religious convictions. The Bill arose following the announcement of the Northern Ireland Equality Commission that they would be issuing legal proceedings against Ashers Baking Company for their refusal to accept an order for a cake with a pro-gay marriage slogan.
The order was refused on the grounds that it contradicted the owner’s religious beliefs on same sex marriages. In response to this case, the bill as proposed attempts to insert a conscience clause within the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2003 (EA (SO) R (NI) 2003) underpinned by the belief that ‘[g]ood equality law respects and makes space for difference.’ While the substance of the proposal is highly important in itself, the manner in which it has been raised and debated also raises significant though not necessarily obvious concerns relating to the broader peace process in Northern Ireland. As will be explored, these are namely competing human rights claims in a pluralist but divided society; consociational processes and their proper operation; and issues pertaining to dealing with the past or legacy of the ‘troubles’. Before addressing these issues, a brief analysis of the proposed legislative amendments is necessary.
The Freedom of Conscience Bill
The introduction of the Bill has sparked widespread media attention, divided public opinion and brought Northern Ireland equality law firmly under the international spotlight. What is relatively surprising about these discussions is that notwithstanding extensive civil society engagement very few appear to have actually read the proposed legislation. In lending support or offering opposition to the Bill it is first necessary to fully understand the proposed amendments and the potential implications that any legislative alterations may have.
Current Equality Legislation in Northern Ireland and proposed changes under the Conscience Bill
Equality on the grounds of sexual orientation in Northern Ireland is currently governed by the EA (SO) R (NI) 2003. Section 5, for example, notes that:
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 [on the grounds of sexual orientation] who seeks to obtain or use those goods, facilities or services […]
More specifically for current purposes, section 16 refers to organisations relating to religion or belief. Under s. 16 a number of exemptions are permitted for organisations which fall within the purview of s. 16 (1). For example, s. 16 (3) permits a religious organisation to (a) restrict membership of the organisation; or (b) to restrict participation in activities undertaken by the organisation or on its behalf or under its auspices in respect of a person on the ground of his sexual orientation. Significantly, however, under s 16 (2) (a), these permissible restrictions do not apply to an organisation whose sole or main purpose is commercial. The Conscience Bill, therefore, proposes to include the following amendment to s. 16:
(1) This regulation applies to a person (“A”) whose sole or main purpose is commercial or anyone acting on his behalf or under his auspices.
(2) Nothing in these Regulations shall make it unlawful
(a) to restrict the provision of goods, facilities and services; or
(b) to restrict the use or disposal of premises,
so as to avoid endorsing, promoting or facilitating behaviour or beliefs which conflict with the strongly held religious convictions of A or, as the case may be, those holding the controlling interest in A.
Contrary to public opinion, therefore, the proposed legislation upon first reading would not enable refusal to serve someone on the grounds of their sexual orientation per se, but rather seeks to protect individuals of religious conviction from being compelled to serve products which endorse, promote, or facilitate beliefs or behaviour which conflict with one’s individual tenets. I will offer a few personal opinions on the proposed legislation at the end but will deal for now with a number of ways which this debate has highlighted indirectly some concerns relating to the broader peace process in Northern Ireland.
Human Rights, plurality and competing rights claims in Northern Ireland
Setting aside the substantive content of the Conscience Bill, the relatively balanced nature of the language of this proposal is to be welcomed. Here I am not solely concerned with what the Bill is about but with a broader focus on the manner in which it has been raised and the implications of this process for the broader peace building effort. It is noted, for example, that the purpose of the amended legislation would be to provide a law which ‘strikes a balance between the rights of people not to be discriminated against and the rights of conscience of religious believers.’ This is hardly a particularly nuanced or progressive approach in a world dominated by human rights norms, cultural diversity, and relativist claims. From a political perspective in Northern Ireland, however, the language of human rights is rarely approached from any level of objectivity or reflective of competing rights and claims to rights of opposing communities. Political parties rarely speak, for example, about the right to truth as encompassing the rights of all victims of the troubles. Rather, parties speaks about ‘our’ right to truth while cursing expenditures for the benefit of the ‘other side’ on public inquiries into the past, Article 2 inquests, or investigative bodies such as the (now defunct) Historical Enquiries Team. Similarly, debates over the Irish Language, the place of Union Flag, and the right to march typically invoke human rights as a sword with which to pierce opposing armours. Very rarely is there an attempt to find common ground in the utilisation of human rights.
In attempting to offer a balanced argument, it must also be acknowledged that Girvan’s invocation of the plurality of Northern Ireland and the necessity of achieving balances on this basis is in fact consistent with international human rights law. Professor Tobias Kelly has commented in a recent post that freedom of conscience has a long-standing legal pedigree of over three hundred years. Indeed, it is expressly recognised in the 1948 Universal Declaration of Human Rights and enjoys constitutional protections in places as diverse as Botswana, Australia, Canada, and most recently Tunisia. Viewed from international and regional human rights law perspectives, freedom of conscience has also been recognised under Article 18 of the International Covenant on Civil and Political Rights, Article 12 of the American Convention on Human Rights, Article 8 of the African Charter on Human and Peoples’ Rights and Article 9 of the European Convention on Human Rights. Similar to all of the aforementioned treaties, the second paragraph of art 9 largely replicates the formula used for balancing individual rights against relevant competing considerations found elsewhere in the European Convention on Human Rights’. Girvan’s proposed Bill appears to reflect this in that he acknowledges the competing claims and advocates striking an appropriate balance in a pluralist society. In doing so it may be the case that this seemingly impartial approach is the beginning of a more appropriate use of human rights not as political bargaining tools but as an area of mutual concern for bridging community divides and finding common ground from which to build from the bottom up. Even if it is political astuteness, framing the issue as a matter of competing rights may be said to alleviate recognition of the substantive content and meaning of human rights amongst the wider body politic of the North.
Consociational processes and their proper operation
Following the proposal of the Conscience Bill, Sinn Fein MLA Caitríona Ruane has stated that her party has already gathered enough support for a petition of concern, permissible under section 42 of the Northern Ireland Act 1998. This means effectively that the bill would need cross-community support and, therefore, would not pass. Sinn Féin’s 28 MLAs have pledged to sign the petition, as have the Green MLA Steven Agnew and NI21 MLA Basil McCrea. Again, notwithstanding the substance of this Bill, I suggest that this is a potentially destabilising decision for a number of reasons.
Firstly, the Northern Ireland Assembly is a power sharing or consociational executive borne from the 1998 Belfast Agreemet. While scholars such as Lijphart, Horowicz, Bell and O’Leary have debated the merits and demerits of this type of government, a frequent criticism invoked is that they are inherently divisive both between communities and within. Yet this form of governance continues to be utilised in divided societies and its success, amongst other factors, is subject to the good faith of parties concerned. It is evident that in a divided society issues will be proposed which are contrary to positions or party lines of others. Yet in the interests of parity of esteem, good faith and compromise, issues when proposed should be debated and due regard given to opposing standpoints.
Secondly, while the substance of this Bill is rather unpalatable it does raise important issues which strike at the heart of the private rights of individuals versus wider public policy concerns. It seems that there is a broader discussion which needs to occur and regrettably this proposed legislation may be the catalyst for doing so. History has taught us that such issues do not just disappear and when not appropriately, openly and transparently addressed can at times manifest in the form of violence.
Perhaps more importantly, however, and again relating to the consociational nature of governance in Northern Ireland, power-sharing arrangements can often present issues as emanating from one side and dialectically opposed to the views of other communities. Yet many within the Christian community are supportive of LGBT rights and would not share the same concerns as expressed by Ashers Bakery. Failing to let their voices be heard and their oppositions expressed, permits this issue to be phrased as a
unionist/Christian versus Sinn Fein/LGBT debate. This can create holistic divisions between the Christian and LGBT communities when this is and need not necessarily be the case.
Finally, on proposing the conscience bill a consultative process was initiated whereby the people of Northern Ireland were encouraged to voice their opinions on the matter. This process is due to finish on the 27th February. Failing to give proper consideration to the views expressed may be seen as eroding democratic principles. The conscience bill and more specifically the outright rejection of the proposal may have detrimental implications on the power-sharing executive generally.
Dealing with the past and the legacy of the troubles
The final concern which this debate raises is one which seems antithetical to the issue of LGBT rights and is expressed in relation to dealing with the past. I say antithetical because LGBT rights and the prominence with which this issue has gained in recent years appears to be, and quite correctly, a considerable and welcome break with the past. The origins of the Northern Ireland conflict stemmed from systemic discrimination against the Nationalist/ Catholic people. In this society, difference and diversity were stifled rather than celebrated and embraced. The rights which the LGBT community have gained are indicative of the tolerance of modern Northern Irish society and should be welcomed and protected. Yet in debating the Conscience Bill the fragility of Northern Ireland politics remains particularly evident. While a discussion which is inherently about rights in the future, the pervading levels of mistrust and suspicion continue to surface amongst unionist and nationalist populations. Debates have quickly turned from the substance and potential implications of the Conscience Bill to the age old stumbling blocks of ‘I am not going to take lectures on human rights from that political party given their role in the past.’ The Stormount House Agreement of December has included number of initiatives to help address the legacy of the trouble including an Oral History Archive; a Mental Trauma Service; an Historical Investigations Unit; an Independent Commission on Information Retrieval; and an Implementation and Reconciliation Group. The results of this agreement remain to be seen but it is apparent that until the past is effectively addressed, it will continue to infiltrate all aspects of political life in Northern Ireland however unrelated.
The Conscience Bill: a Few Concluding Remarks
The discussion above largely neglected the substance of the Bill. Instead, it focused on a number of ways in which the manner of the proposal has been made and debated how this may have positive or negative implications on the broader Northern Ireland peace process. It would be remiss, however, to fail to offer a few personal opinions on what has become a highly contentious yet important issue. Exploring the substantive content of what is being proposed makes it a more complex issue than many appear to suggest. That is while the particular focus is on religious and LGBT rights specifically, there are broader implications on the proper meaning and place of rights and competing claims in a pluralist society. If not approached in an informed and sensitive manner there is the risk of contradicting the fundamental argument which is invoked in support of gay rights in a liberal democratic society- tolerance. Nonetheless, there are a number of reasons why in my opinion this Bill should not be legislatively adopted.
Firstly, while the process of acknowledging competing rights claims is both pragmatic and necessary, one cannot help but see the double standards in the DUPs approach. For example, when the law has protected the status quo such as outlawing same sex marriage, the DUP has not been so forthcoming in their talk of competing rights claims. In this case the language of tolerance is invoked to challenge equality legislation and is perhaps more representative of political astuteness rather than a genuine concern with reaching a meaningful agreement. That is, the language of tolerance is more appropriate when you are attempting to challenge the status quo than when someone else is trying to challenge yours. It is difficult to take seriously the DUP’s proclaimed recognition of LGBT rights when members of this party have in the past described homosexuality as an abomination and an affliction which upon appropriate psychiatry can be cured.
Secondly, the example of the Ashers Bakery does in fact frame the underlying issues in a difficult way. It would be much easier to reject in an outright manner legislation which permitted refusal of services or products on the basis of one’s sexual orientation. The legislation in fact attempts to protect one from being forced to, for example, make a cake which promotes something which is against one’s own personal beliefs. Yet one must look beyond this specific example and address the broader implications of such legislation. Does a taxi driver, for example, have the right to refuse to bring a gay couple to a gay club on the basis of that what goes on inside that club may be counter to his or her religious beliefs? In concluding his post Professor Tobias Kelly comments that ‘[w]e are less ready to valorize conscience as the basis for political or other forms of action. Many of us are less ready to trust convictions of any sort.’ Indeed, failure to valorize conscience in this manner is in large part due to the uncertainty, inconsistency and unpredictability of religious convictions. There are great disparities across the Christian community on the issue of gay rights and the potential weight attached to this proposed legislation will without doubt have the potential of leading to discrimination against sections of the community.
Thirdly, a great deal has been made about the hierarchical ordering of rights which the current equality legislation enables. Yet there appears to be an overemphasis on political correctness here. Rights are rarely absolute and in a contested society rights claims inevitably confront each other. There is, it follows, almost always a hierarchical ordering of rights when rights conflict. Doctrines such as margin of appreciation and wider debates on the relativity of human rights have been borne from such contestation. What is to be hoped, however, is that an objective and grounded determination is made on which rights prevail in which circumstances. In reaching such determination I suggest that the historical context should play a significant role. In the case of Northern Ireland the detrimental effects of discriminatory practices was illustrated in thirty years of conflict. The current legislation seeks to eradicate discriminatory practices and while having the potential effect of eroding the rights of religious convictions, the justifications for doing so are borne from clear public policy objectives. While it is certainly going to be the case that some feel their rights are subordinated, one must be upfront about the fact that in a pluralist society this will and does occur. The point of the rule of law, due process, democratic structures and principles is to ensure that such determinations are fair, transparent, and based on public policy considerations.
Finally, one cannot help but note the misapplication of rhetorical or psychological arguments which have been made in support of the Bill. Questions such as ‘would a shop on the Falls Road be forced to print a t-shirt supporting the UVF’ or would a pacifist opposing the Vietnam War be forced to promote pro-war propaganda have been levelled? Similar debates can be made in relation to abortion, another highly relevant issue in Northern Ireland at this moment. It is certain that these are difficult issues. In my view, however, the equation of such examples to LGBT rights is misguided. It appears to ignore the evidence that being gay is not a life choice but a part of the person in much the same way as the colour of one’s skin or ethnicity. We would thankfully not accept that religious beliefs of a white man permit him from refusing to serve a black man or woman. Why should it be any different to an LGBT man or woman? An obvious response to this is that it is not about refusing to serve per se but having the freedom in certain circumstances to refuse certain services. I would suggest that the likely result of any such legislation will be direct discrimination against people on the grounds of sexual orientation in ways not envisioned by this clause.
For my part, I acknowledge these difficulties and encourage people to view the complexities and competing claims to rights which this issue invokes. However, inevitably a judgement call has to be made and, in my opinion and accepting that there will inevitably be ‘losers’, the religious convictions of some cannot be said to trump the right to equality of others. Beginning to frame human rights as common concerns with inherent tensions in a pluralist society may perhaps paradoxically lead to greater understandings of the need for compromise and reasoned debate.