Chapter Updates

Chapter 2: Delegated Legislation

Controversial delegated legislation raises major constitutional question

The government’s plans to protect citizens from discrimination, on the grounds of sexual orientation, in accessing goods and services has proved incredibly controversial, to the extent that the constitutional relationship between Church and State has even been questioned. The focus of the discontent is a piece of delegated legislation, the Equality Act (Sexual Orientation) Regulations 2007, which was carried into law by the House of Lords in March 2007 for commencement in April. Similar regulations have applied in Northern Ireland since 1 January 2007, though they have already become subject to judicial review actions in the courts.

The main objection to the legislation is that it will force religious organisations and individuals to offer services for the benefit of all citizens, regardless of the view that some sections of society have lifestyles that are contrary to religious teachings. The BBC news service (10/1/07) listed a number of examples raised by critics:

• Hotels and guesthouses owned by those adhering to a religious faith will not be allowed to refuse rooms to same–sex couples
• Religious organisations would be obliged to rent out halls for civil partnership (‘gay wedding’) receptions
• Printers adhering to a religious faith might be forced to print advertising flyers and leaflets for a gay night club
• Teachers would have to be careful not to promote heterosexual marriages over civil partnerships

One particular concern, which led to a limited concession from the government, was over adoption services, and specifically whether a Catholic adoption agency would be forced to accept same-sex couples. Whilst Catholic Bishops sought full exemption from the legislation, the government's compromise was a 20 month transitional period for the adoption agencies to change their procedures so as to achieve compliance with the law.

Lord Morrow, a Democratic Unionist Party peer and one of the leading opponents of the legislation, has expressed the view that giving homosexuals the right to sue organisations if they are discriminated against presents those organisations with a significant dilemma: “They (the regulations) require religious organisations to choose between obedience to God and obedience to the State.” This dilemma reflects the broader constitutional point of the relationship between Church and State, with former Anglican Archbishop of Canterbury, George Carey, being accused in the media of arguing for disestablishment of the Church of England from the UK State, a point he has subsequently denied (The Times, 28/3/07). He believes, however, that the 2007 Regulations are severely straining Church-State relations and therefore the government is “playing into the hands of intolerant secularists whose aim seems to be division, not unity”.

Although subject to the affirmative resolution procedure (see textbook at pp44-45), some critics have also objected to the status of the legislation. For example, a letter to the Times from Rector C.J. Davis (20/3/07) complained that such an important change in public policy was being brought about by "mere secondary legislation, the details of which were not explicit in the Act which provided for it" (s81(4) b of the Equality Act 2006). The implication here is that an attempt to get this sort of proposal through as primary legislation would provide for greater parliamentary scrutiny and debate and, arguably, more readily reflect the will of Parliament rather than that of the government.

As a final aside, some indication of the complexity of the debate was provided by an objection to the legislation by owners of a guesthouse specialising in rooms for same-sex couples, who felt that a legal obligation to accept heterosexual couples would undermine its commercial identity and threaten customer loyalty.

Famous author accused of breaching local by–laws

The novelist Ian McEwan, who won the Booker Prize in 1998 with ‘Amsterdam’, has been contacted by Weymouth and Portland Borough Council with regard to the breach of a byelaw. The controversy was sparked when McEwan admitted, on Radio 4, to taking some pebbles from Chesil Beach, Dorset in the course of writing his latest novel, ‘On Chesil Beach’. However, he quickly returned the pebbles when a representative of Weymouth and Portland Borough Council informed him that taking shingle from the beach – designated a World Heritage Site – was a breach of a local byelaw and could result in a fine of up to £2000.