Official Report: Minutes of Evidence

The Chairperson (Ms Bradshaw): Welcome to the meeting, gentlemen. We have Sam Webster, solicitor advocate, and James Kennedy, Northern Ireland policy officer. Would you like to make some opening remarks?

Mr James Kennedy (Christian Institute): Yes, please. Thank you so much, all, for inviting us today. We submitted a brief note following the stakeholder round-table event in December, but there was an appetite for us to speak to the whole Committee, and we can, hopefully, answer any questions that you have.

Let me open by explaining our note. First, by way of background, the Christian Institute is a non-denominational Christian charity supported by about 60,000 individuals and churches, including approximately 11,500 in Northern Ireland. Several staff, including me, work in our offices in Belfast, while a further 40 or so staff, such as Sam, work in our headquarters in Newcastle upon Tyne. We also have offices in Scotland and Wales.

The major focus of our work over many years has been to defend religious liberty. That includes legal freedoms and protections for Churches and other Christian organisations and for individuals in their day-to-day lives in their workplaces and businesses. As the institute's in-house solicitor, Sam leads the work of our legal defence fund, which, over the years, has helped nearly 3,000 Christians who contacted us for support, advice or guidance. As a solicitor admitted in England and Wales, Sam has long-standing expertise in advising on the Equality Act 2010. Although not a solicitor in Northern Ireland, Sam is familiar with the framework of equality law here, and he can perhaps speak in particular to the differences and similarities between the jurisdictions.

As part of our religious liberty work, the institute closely monitors any proposed changes to the law that might threaten Christian freedom. You do not have to be a Christian to agree with us that freedom of belief is vital. We have a rich heritage of freedom in our nation, hard won down the ages. Freedom for those of faith to worship and to faithfully live out their beliefs in the public square are not universal freedoms that can be found across the world. We all owe it to our society to treasure and guard that religious freedom.

To that end, we included in our note to the Committee concerns that we have about any proposal to consolidate equality law. Consolidation or harmonisation does not in itself pose a risk to religious freedom. While greater clarity in navigating equality law may make life easier for legal advisers, that should not detract from our caution. It seems to us that drawing together the patchwork of equality law here into a single, harmonised piece of legislation is not a straightforward task. Our equality law has developed over many years and has been tried and tested in the courts. In many ways, it reflects our history and culture. A process of harmonisation could easily lose sight of why that law has developed in the way that it has.

During the passage of the Equality Act 2010 in Westminster, for example, we noticed that the Bill put before Parliament had introduced a few changes in the wording of the genuine occupational requirements for Churches and similar bodies. On the face of it, the changes seemed minor, but they would have made it more difficult for Churches to uphold their doctrinal beliefs when appointing staff, exposing them to the threat of litigation. Those changes were, no doubt, just a product of a parliamentary draftsman not really understanding the nature of religious belief and how Churches function in practice. Thankfully, we noticed in time, and the original pre-2010 wording was reintroduced by amendments in the House of Lords.

In the passage of the Equality Act 2010, however, we also saw inadvertent omissions. For instance, the explicit exclusion of Churches from gender reassignment discrimination at section 35ZA of the Sex Discrimination Act 1975 was not carried through to the 2010 Act. We discovered some time after the passage of the Act that the explicit exception for Churches was nowhere to be found. I do not mean to bog us down in the detail, but that illustrates the point that, whilst the pre-2010 equality legislation in GB may have had its challenges to navigate, it at least did its job. The process of harmonisation led to failures to properly translate existing equality provisions. To choose to do something similar here would be to compile and compare swathes of legislation drafted over several decades. We would have to consider complex jurisprudence and try to make it all fit together without losing anything. Add to that the desire of many stakeholders to amend equality provisions to address perceived gaps, and, I suggest, you have a significant and complex undertaking.

From the other issues that we raised in our note, it is worth making two overriding points. First, we sought to highlight a few areas where filling the gap would have an adverse impact on religious freedoms and freedom of expression. We objected to the call by others for an extension of third-party harassment provisions in the field of employment. The extension of third-party harassment to protected characteristics beyond the current sexual harassment provisions would, we believe, place greater pressures on the hospitality and academic sectors, creating a legal interest in businesses to police what members of the public say. That would have a chilling effect on freedom of speech. In particular, we are concerned that an extension of such laws would increase "cancel culture" in hospitality and conference venues, particularly regarding bookings from belief groups. Those venues would be concerned to take steps to avoid claims from staff who might feel offended simply through overhearing particular views or beliefs being expressed as they do their jobs in facilitating events.

We also note the call from the Equality Commission for discrimination protection for volunteers. We consider that to be unnecessary and unworkable in the context of Churches and other faith groups. Indeed, the Christian Institute was an intervener in a case that went to the UK Supreme Court in 2012, where the court ruled that discrimination protections for volunteer workers were not required under EU law. I am sure that we all want to support our thriving charitable sector and recognise the contribution that it makes to our society. The imposition of volunteer discrimination rights would impose a massive burden on that already overstretched sector, which is heavily dependent on volunteers. Although, in some cases, volunteer roles may have formal arrangements, in most cases, they do not. Often enough, people volunteer to help unprompted or simply end up in an ad hoc role without the organisation's having actively recruited them, so to speak. If the provisions that are currently applicable only to paid workers were extended to volunteers, the flexibility afforded to charities by people simply lending a hand would be undermined.

Notwithstanding our caution about harmonising equality legislation, we highlighted in our note a few areas in which existing equality law here might be clearer for the benefit of religious freedom. That said, we do not want to overstate those points. We raised them for completeness and to illustrate that we do not consider that the current laws are completely beyond improvement.

I finish by noting briefly that we recognise the benefits of devolution here and elsewhere. Although the arrangements may be imperfect, they nevertheless empower the Assembly to legislate in a way that, hopefully, means that solutions can be tailored to our needs. I say that merely to make the point that, although we may learn from other jurisdictions, simply modelling equality law on the position in GB, the Republic or, indeed, anywhere else should not be the overriding concern. I urge the Committee to keep that in mind and to aim for the right provisions for our own place without risking existing protections along the way.

The Chairperson (Ms Bradshaw): Thank you very much. Sam, do you want to make any opening remarks?

Mr Sam Webster (Christian Institute): No. James made the opening statement on behalf of us both.

The Chairperson (Ms Bradshaw): OK, no problem. I was just checking.

I appreciate the complexity of bringing forward a single equality Bill in Northern Ireland. We are very much reflecting what a wide section of society has said to us about its aspiration to tidy things up and ensure that there is equal treatment in accessing public services etc. GB was able to do it, so why do you not think that we would be able to do it, given the experience and understanding that we now have of the difficulties at Westminster?

Mr Webster: We are not disputing that Westminster consolidated equality law back in 2009-2010, but we have said that it was not an entirely straightforward exercise. It was a significant exercise, and the same would be true here. The Law Society of Northern Ireland said that it would be a "mammoth task". Our experience of that exercise in 2010 was that it was not straightforward for religious liberty. There were omissions, as James said, and provisions were not translated across from the old law in the way in which they should have been. Our warning to you, as a Committee, is that it was a hugely time-consuming exercise. It needed the parliamentary process at Westminster, including the House of Lords, to scrutinise that legislation properly to make sure that it went through in a faithful way.

The Chairperson (Ms Bradshaw): I appreciate that. We are a legislature here. I do not remember the most recent primary equality legislation, but it is about time that we started looking at that space.

Will you speak to the issue of volunteers being subjected to discrimination? Will you speak a wee bit about how we could address that issue, if not through some new legislative vehicle?

Mr Webster: At the moment, no part of the United Kingdom has discrimination law for volunteer workers. Our interest in that goes back to 2012, when the case of X v Mid Sussex went to the United Kingdom Supreme Court. The question was whether the European framework directive required such occupational rights for those in volunteer positions. The Supreme Court held — rightly, we believe —that there was no requirement under EU law to do so.

That case also highlighted many of the problems that would arise were rights given to volunteer workers. In the vast majority of cases, there is no formal relationship between the worker and the person for whom they volunteer. We have made submissions to the Supreme Court in respect of the charitable sector. In that sector, people fall into volunteering; it is not a recruitment exercise. When it comes to Churches, for example, an awful lot of what goes on in Church life is done by members who volunteer, whether that is helping with a church youth group, with hospitality or with setting up on a Sunday. An awful lot of the ordinary legwork of Church life is done by volunteer workers. When you start to bring volunteer workers into the full panoply of discrimination law, the danger is that you create a bureaucratic nightmare for the voluntary sector.

If you give rights to volunteer workers, you have to think about corresponding exemptions and how those apply. Should hard-pressed charities in the voluntary sector have to be concerned with getting their paperwork in order and ensuring that, before they ask someone to help out with the ordinary life of the organisation or church, there is an exemption in law that allows them to make certain restrictions in what they require of that worker? It is an area that, first, is not necessary and, secondly, would create a significant burden on the voluntary sector. It would certainly be a significant burden in Church life.

The Chairperson (Ms Bradshaw): OK. The thought that is going through my head is this: the Committee is looking at historical clerical child abuse, so, in some ways, I understand why we would want to move more towards a bureaucratic system for people who volunteer, for example, but that is for another day.

Go ahead, Deputy Chair.

Mr Dickson: Thank you. That thought crossed my mind as well.

You said that changing the law would be difficult to deliver. I do not underestimate the task, but the fact that something is difficult does not mean that we should not or cannot do it.

Setting aside the issues that you might have — I remember well comments made at other Assembly Committees when we introduced legislation — once legislation leaves the Minister's office, it is open to amendment and discussion. That is open to the public, in that everyone is included and can make their argument for change, where that can be achieved. That is the democratic life that we live. I find uncomfortable the suggestion that a reason not to do something is the fact that it is difficult. Certainly, mainstream organisations in Northern Ireland that deal with equality issues have asked for it.

You are right: we have a patchwork of equality law in Northern Ireland, but it is time that we smoothed out the patchwork, looked at how we can join it together and looked at where the gaps are, which this what the inquiry is doing. That is not so much a question; it is more of a comment that the fact that something is difficult should not be a reason not to do it. I respect your points, but, equally, I invite you to understand that legislation is up for change. That allows all of those discussions. If you genuinely believe in equality, all of those views are welcome. Whether the legislation that ends up on the statute book reflects those views is a matter for people such as you and others coming forward and making those arguments as it progresses.

The other point that the Chair made was about volunteers. I am involved in a number of volunteer organisations, and I know that, while we certainly do not want to see the burden of paperwork being added to, there is already a panoply of paperwork, particularly in respect of the background and legal checks on volunteers in churches and everywhere else nowadays. The legislative proposals would, again, be open for discussion, but additional protections in respect of individuals who volunteer in churches would, I think, be welcome rather than not welcome.

Mr Kennedy: I guess that we could respond. Certainly, on the first point — the complexity — it is not that we are saying, "This is complex, and therefore you should not do it".

Mr Dickson: That is what it sounded like.

Mr Webster: May I just say that we have not made a case in principle against harmonisation and consolidation? We have just said that you should tread with caution. That is consistent with what we said in our note. There are issues and complexities that you need to be mindful of. We have not said more than that.

The Chairperson (Ms Bradshaw): That is fair enough.

Ms Ní Chuilín: I draw attention to page 2 of your note. It is the point above the title, "Fair Employment and Treatment Order". The preceding paragraph says:

I would like you to explain that and the sentence that follows:

What does that mean?

Mr Webster: It is a general paragraph. I noticed that other submissions said, "The United Kingdom has x, y and z in its equality legislation. The Republic of Ireland also has x, y, and z. Other jurisdictions have this" . That is all very interesting, but we are simply saying that, ultimately, as legislators, if you are to legislate for Northern Ireland, you should not be asking, "What do other countries have?". By all means, have regard to models elsewhere, but, ultimately, it should be down to the needs of this place with regard to its history and traditions. We are not saying anything more than that. We are not making a specific point; just a general one: do not be overly swayed simply because other places do or do not have certain provisions.

Ms Ní Chuilín: That clarification is helpful. However, in my experience here, most people, if not all, are not swayed. They just look for comparisons. We will not be at all put off by the complexity or the depth of updating equality legislation, simply because there is a real need for it.

What you said about third-party issues sounds to me like a rationale for not supporting the Equality Commission or the Human Rights Commission: if a person may be offended by what someone else says, it should not be said. That is not a reason why you should not introduce stronger equality legislation. Could you explain that? It does not make sense to me.

Mr Webster: Is that about the third-party harassment provisions?

Ms Ní Chuilín: Yes.

Mr Webster: OK. The Equality Act 2010 originally contained wider third-party harassment provisions, and the Westminster Parliament removed them. In 2023, sexual harassment third-party rights were put back in. We have no problem with that.

The concern is that, if you have third-party harassment rights more widely, you create almost a duty on employers. In wanting to give that space to employees not to be harassed, the employer goes too far. We have seen cases where we have been involved and helped the person concerned. Under the existing law, which has no third-party harassment provisions, you already have venues that will cancel an event because they are concerned that staff may be offended by views expressed at it.

I can think of one event that took place in Northern Ireland and in which we got involved. It was a meeting about marriage. The hotel concerned stopped the meeting halfway through because it was concerned about offence being caused to others. What happened there was that the individual who was hosting the event brought a claim under the Fair Employment and Treatment (Northern Ireland) Order 1998. That ended up with a successful settlement, and he got some damages for that. The venue acted unlawfully in closing down the event. Perfectly legitimate, protected beliefs were being expressed at that meeting, but, if you had third-party harassment provisions, you would create a defence or excuse for that hotel. It would say that it was justified in stopping the event because of concern that it might cause offence to its employees, or it might say that some had already expressed discomfort about it. That is what we are concerned about.

The Free Speech Union has put out helpful material on the subject and how it would affect many employers in the hospitality sector. From our experience of working on issues of religion or belief that are, at times, more controversial, we have experienced that sort of treatment from venues, and we have supported people who have received that treatment. We just do not want to make it harder for organisations such as ours. It is about freedom of expression, and we believe that concerns about employees can be dealt with in a better way, particularly through contract law. Employers are under a duty of care to their employees anyway. That is better than creating a rather detached statutory duty that is liable to be used wrongly.

Ms Ní Chuilín: I do not want to offend or insult anyone, but, to me, it reads like a caution against the expansion of rights for everyone. Your note also speaks to me as being just for the Christian denomination, and I feel that some of the content in the note is a caution, which, when you compare it with the history and circumstances here, is not appropriate, given that there has been a denial of rights here for so many decades. We have an opportunity to get the best possible rights for all with something that has section 75 embedded in it. I assure you that it is not about excluding section 75. However, I am concerned when I see notes like this, because I hear exclusion rather than inclusion. I am just giving you that opinion.

Mr Kennedy: We need to be really clear that, when it comes to the issues of complexity that we have drawn out, we are not saying, "Do not do this, because it is complex" or "Do not do it" generally. We are saying that trying to do all of this all at once is prone to causing problems, and that is what we have seen in England. Our caution is to be careful about what you do here, because if affects equality. You could end up with a situation where you have tried to enhance equality provisions but end up reducing equality provisions on at least some grounds, if not all. It is a case of caution; it is not about saying, "Don't advance equality". That is certainly not what we stand for.

Ms Ní Chuilín: I appreciate that. Thank you.

Mr Webster: I will just add that, in our note, we do not take issue with very much in equality law. The points that we raised are quite narrow, and we raised them because we were invited to do that.

The Chairperson (Ms Bradshaw): I appreciate that.

Mr Gaston: Good afternoon, gentlemen. I have a couple of technical things to point out. On page 1 of your note, you say:

We have already had some discussion about that today. Of all the witnesses during my time on the Committee, I believe that you are the first organisation that has come before us to make that point. Given that you are the first and that this is the last day on which the Committee is taking evidence, do you think that we have missed a section of people out?

I always look at Christians as a silent movement in Northern Ireland. A lot of the denominations and Churches that make up a considerable part of our population might not speak out on issues like this. Have we missed having the influence of Churches throughout our look at the gaps in equality legislation, and has the evidence been flawed because we have missed that?

Mr Kennedy: We would not characterise it in that way. We submitted the notes because we were invited to do so. We attended a stakeholders' meeting because we were invited to do so. We felt that that was important, but this is a difficult inquiry for us to engage in, because the Committee is looking for the gaps, and that is not necessarily where we have concerns. Our concern is about what happens when you try to fill the gaps. It is one thing to seek out the gaps and hear from stakeholders who rightly say, "Here are areas where we want to see more support for our stakeholders". There are all sorts of areas in which we do not work, including age and disability. We have no involvement with most of the characteristics and would not speak out about them. However, on religious freedom, our concern is about what you do to change the legislation rather than where there are gaps.

For us, it is more a case of waiting to see the proposals that are put forward. We will then be able to say, "Here is an issue of religious freedom, where something needs to be addressed". My presumption is that the vast majority of other Christian groups will not say much, because religious freedom in Northern Ireland is in a good place. We are coming in not to say, "Here is a wealth of areas in which you could advance things" but to say, "We are worried that what you do could impact on what is already there. It could limit existing freedoms". It is a delicate, complex area and needs a lot of care. I expect that that is probably where other groups are coming from too.

Mr Gaston: I was keen for you to come to the Committee. Is it fair to say that your concerns are more about the erosion of existing religious freedoms? If you fill a gap, obviously there may be a chance for somebody else's freedoms to be eroded. Do you see that as a potential attack on the Church?

Mr Webster: I probably would not put it in those terms. It is about the interface between some of the possible changes and religious freedom and about possible unforeseen consequences. For example, I am sure that, when the Fair Employment and Treatment (Northern Ireland) Order 1998 was passed, nobody envisaged the Ashers Baking Company's case ending up at the Supreme Court. Did anyone think of the implications for freedom of expression?

All we say is that caution needs to be exercised. Why should the citizen have to go all the way to the UK Supreme Court to get the law clarified in order to defend his or her right to freedom of expression or religious freedom and have to spend £300,000 to do so? Laws can be passed easily, but legislatures do not always see the implications down the track for other protected characteristics and for how such things can pan out in the real world. I am not sure whether that answers your question.

Mr Gaston: That is a fair point. It is good that you have come in and been given the space to make it.

I will go back to the idea of consolidating everything in one Act. You mentioned the failure of a draftsman with the Sex Discrimination Act 1975 and the fact that you had to go to the House of Lords to get provisions put in place. Do you have any practical examples of where the Committee should be cautious? How could consolidating everything impact on the Church and on what you do as an organisation if something were not right in the draft? You expressed your concern, but have you thought how that might look practically?

Mr Webster: That is more about the legislative process. James, do you want to talk about that?

Mr Kennedy: If a mistake is made anywhere along the line, it could have an impact and not just on the Christian faith or the Churches. Any of the characteristics will be affected if legislation is passed that is not neatly and carefully balanced. Whether it is a protected characteristic or something else, whichever group you seek to — it may be unfair to say "group" — whichever aspect of the equality set you try to enhance protections for, you will have all the other characteristics and the interfaces between them to consider. That is where problems will arise, because it is an extremely delicate set-up. It is not something that has arisen over 10, 20 or 30 years of Northern Irish history. Rather, decades and decades of legislation, case law and all the rest of it have to be taken into account and carefully worked through.

It is also a question of which set of draftsmen will be able to fully take all of that on board and work it through. It is not impossible, but it is extremely complex, and it is not about Church protection. It is about whether it can be done in a good and balanced way. That is our caution.

Mr Gaston: With regard to your direct challenge to the Equality Commission regarding volunteers in Northern Ireland, how might that pose difficulties for people who live day by day by the Bible and take a stance where the Bible does against homosexuality?

Mr Webster: I am not sure that I understand the question, sorry.

Mr Gaston: You cite and directly challenge the Equality Commission when it talks about discrimination protections being extended to volunteers. In a church setting, where you have a Bible-believing Church that takes a stance against homosexuality, what problems could that cause? If a volunteer with the Church said that they were homosexual, could they then take a case against the Church if, because of that, they were asked to leave their position as a volunteer?

Mr Webster: At the moment, just starting with the employment provisions before we come to volunteers, an employee would have protection on the basis of a number of protected characteristics, sexual orientation obviously being one of them. If there were to be an issue whereby a particular employee was not abiding by the church's teaching in that area, those protections for the church would give it the right to remove someone.

Ms Ní Chuilín: "Gays don't apply" is basically what you are saying.

Mr Webster: It is about —

Ms Ní Chuilín: Gays not applying.

Mr Webster: No, it is not. It is about conduct consistent with the doctrinal teaching of a Church. Churches have the liberty under existing law across the United Kingdom to ensure that those who hold particular positions in the Church abide by the teaching of the Church. That is all we are talking about here.

The Chairperson (Ms Bradshaw): Do you want to finish off, Timothy?

Mr Webster: If you apply discrimination law to volunteers and you have a volunteer who is not abiding by the teaching of the Church in that area, we would say that the Church should be able to say, "I'm sorry but you can no longer volunteer in this role within the life of the Church because it compromises the position of the Church".

If you bring in the full panoply of discrimination law to volunteers, it makes it a much harder job for Churches to, if you like, oversee who is volunteering, who is doing what, who has fallen into helping out in certain ways in the life of the Church. It could have a knock-on effect on the ability of Churches to use volunteers. There will be a lot more caution about letting volunteers simply start helping out in the life of that Church or organisation. Also, Churches will be thinking about what exemption applies: "Does this exemption cover this particular role?". I just do not think that Churches, many of which are quite small, should have to be running off to lawyers the whole time to know whether they are entitled to take certain decisions.

Mr Gaston: I would be strong on the point that faith-based organisations that, day by day, use the Bible as their navigation tool should have the protections in place to say to somebody, whether an employee or a volunteer, who was not living that way, "You know what? You're not in keeping with the organisation" and bringing that to an end. That is an important freedom that needs to remain.

The Chairperson (Ms Bradshaw): All right, thank you.

Mr Webster: Can I just make a point?

The Chairperson (Ms Bradshaw): Very quickly.

Mr Webster: Obviously, this needs to be seen in the wider context of human rights. The Church community and the case law of the European Court of Human Rights is significant in that respect. There are the article 9 rights of religious bodies and communities and article 11 on freedom of association. It all goes to the question of the freedom of association of religious communities, which means the ability of those religious bodies, those denominations and associations, to regulate things according to their beliefs.

One must not read equality law in isolation from the wider human rights instruments.

The Chairperson (Ms Bradshaw): OK, I appreciate that. For the record, the Clerk and his team invited a number of different Christian religious orders. You all were invited that day. You were up in the Long Gallery. You then put in a submission. You were at the Long Gallery and you have been invited back, so we have tried to create a bit of balance around this. Where other organisations maybe did not engage, that was not through a lack of trying on the part of the Clerk and his team.

Thank you so much for your time. As I say, that is — sorry, Brian. Go ahead. My apologies. I am just conscious that

we are behind.

Mr Kingston: I thank Sam and James for attending again. I know that you were also at the round-table event upstairs. Thank you for your work in standing up for religious liberty. I take the view that it is necessary to stand up for the right to religious belief. It is an important sector in society. I share concerns that there are attempts to squeeze a faith approach out of the public square. Faith is an important

to many individuals, many Churches and other religious groups. It is important for us to hear from people such as you about unintended consequences for things that are long rooted in history.

The questions that I had have all been covered. Thank you.

The Chairperson (Ms Bradshaw): OK, I appreciate that. Apologies again, Brian.

Gentlemen, thank you so much.