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

• (a) a certificate signed by or on behalf of a Minister of the Crown or a government department and certifying that any condition, requirement or arrangement specified in the certificate was imposed, made or approved by that Minister or that department (as the case may be) and was in operation at a time or throughout a time so specified;

• (b) a certificate signed by or on behalf of the Secretary of State and certifying that an act specified in the certificate was done for the purpose of safeguarding national security or of protecting public safety or public order,

shall be conclusive evidence of the matters certified.

• (3) A document purporting to be a certificate such as is mentioned in paragraph (2) shall be received in evidence and, unless the contrary is proved, shall be deemed to be such a certificate.

Indirect access to benefits etc.

48

• (1) References in these Regulations to the affording by any person of access to benefits are not limited to benefits provided by that person himself, but include any means by which it is in that person’s power to facilitate access to benefits provided by any other person (the “actual provider”).

• (2) Where by any regulation of these Regulations the affording by any person of access to benefits in a discriminatory way is in certain circumstances prevented from being unlawful, the effect of the regulation shall extend also to the liability under these Regulations of any actual provider.

Acts done under statutory authority etc.

49

• (1) Nothing in any provision of regulations 5 to 25 shall render unlawful any act of discrimination done —

• (a) in pursuance of any statutory provision; or

• (b) in order to comply with any condition or requirement imposed by a Minister of the Crown or government department by virtue of any statutory provision.

• (2) Nothing in any provision of regulations 5 to 25 shall render unlawful any act whereby a person discriminates against another on the basis of that other’s sexual orientation, if that act is done —

• (a) in pursuance of any statutory provision; or

• (b) in order to comply with any requirement imposed by a Minister of the Crown, a Northern Ireland Minister (including the First Minister and deputy First Minister) or government department by virtue of any statutory provision; or

• (c) in pursuance of any arrangements made by or with the approval of, or for the time being approved by, a Minister of the Crown, a Northern Ireland Minister (including the First Minister and deputy First Minister) or government department; or

• (d) in order to comply with any condition imposed by a Minister of the Crown, a Northern Ireland Minister (including the First Minister and deputy First Minister) or government department.

• (3) This regulation applies whether the statutory provision, condition, requirement or arrangement in question was passed, made or imposed (as the case may be) before or after the making of these Regulations.

Acts safeguarding national security etc.

50

No act done by any person shall be treated for the purposes of any provision of regulations 5 to 25 as unlawfully discriminating if —

• (a) the act is done for the purpose of safeguarding national security or protecting public safety or public order; and

• (b) the doing of that act is justified by that purpose.

Effect of certificates by Secretary of State

51

• (1) This regulation applies where in any proceedings —

• (a) a person claims that an act discriminated against him in contravention of any provision of regulations 5 to 25; and

• (b) the person against whom the claim is made proposes to rely on a certificate purporting to be signed by or on behalf of the Secretary of State and certifying —

• (i) that an act specified in the certificate was done for the purpose of safeguarding national security or protecting public safety or public order; and

• (ii) that the doing of the act was justified by that purpose.

• (2) The claimant may, in accordance with the rules under section 91 of the Northern Ireland Act 1998, appeal against a certificate to the tribunal established under that section.

• (3) If on an appeal under paragraph (2) the tribunal determines —

• (a) that the act specified in the certificate was done for the certified purpose; and

• (b) that the doing of the act was justified by that purpose,

the tribunal shall uphold the certificate; in any other case, the tribunal shall quash the certificate.

• (4) If —

• (a) the claimant does not appeal against the certificate; or

• (b) the certificate is upheld on appeal,

the certificate shall be conclusive evidence of the matters certified by it.

• (5) Sections 91 and 92 of the Northern Ireland Act 1998 shall apply in relation to appeals under this regulation as they apply in relation to appeals under section 90 of that Act.

• (6) In this regulation —

• “claim” includes complaint; and

• “claimant” includes complainant.

Burden of proof: county court

52

• (1) This regulation applies where a claim is brought under regulation 36 and the claim is that the respondent —

• (a) has committed an act of discrimination, on the ground of sexual orientation which is unlawful by virtue of any provision of these Regulations; or

• (b) has committed an act of harassment.

• (2) Where on hearing the claim, the claimant proves facts from which a court could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent —

• (a) has committed such an act of discrimination or harassment against the claimant; or

• (b) is by virtue of regulation 23 or 24 to be treated as having committed such an act of discrimination or harassment against the claimant,

the court shall uphold the claim unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.

Application to Crown etc.

53

• (1) These Regulations apply —

• (a) to an act done by or for the purposes of a Minister of the Crown, a Northern Ireland Minister or government department; or

• (b) to an act done on behalf of the Crown by a statutory body, or a person holding a statutory office,

as they apply to an act done by a private person.

• (2) These Regulations apply to —

• (a) service for purposes of a Minister of the Crown, a Northern Ireland Minister or government department, other than service of a person holding a statutory office; or

• (b) service on behalf of the Crown for purposes of a person holding a statutory office or purposes of a statutory body; or

• (c) service in the armed forces,

as they apply to employment by a private person, and shall so apply as if references to a contract of employment included reference to the terms of service.

• (3) Paragraphs (1) and (2) do not apply in relation to the provisions mentioned in paragraph (4).

• (4) Regulations 12 to 15 bind the Crown and the other provisions of these Regulations so far as they relate to those provisions shall be construed accordingly.

• (5) Paragraph (4) of regulation 54 shall have effect in relation to any ship, aircraft or hovercraft belonging to or possessed by Her Majesty in right of the Government of the United Kingdom as it has effect in relation to a ship, aircraft or hovercraft such as is mentioned subparagraph (a) or (b) of the paragraph in question.

• (6) The provisions of Parts II to IV of the Crown Proceedings Act 1947⁹ shall apply to proceedings against the Crown under these Regulations as they apply to proceedings in Northern Ireland which by virtue of section 23 of that Act are treated for the purposes of Part II of that Act as civil proceedings by or against the Crown, except that in their application to proceedings under these Regulations section 20 of that Act (removal of proceedings from county court to High Court) shall not apply.

• (7) In this regulation —

• “armed forces” means any of the naval, military or air forces of the Crown;

• “service for purposes of a Minister of the Crown, a Northern Ireland Minister or a government department” does not include service in any office mentioned in Schedule 2 (Ministerial offices) to the House of Commons Disqualification Act 1975¹⁰; and

• “statutory body” means a body set up in pursuance of a statutory provision, and “statutory office” means an office so set up.

Extent

54

• (1) Regulations 9 to 11 do not apply to benefits outside Northern Ireland except —

• (a) travel on a ship registered at a port of registry in Northern Ireland; and

• (b) benefits provided on a ship so registered.

• (2) Regulation 5(1) —

• (a) does not apply to goods, facilities or services outside Northern Ireland except as provided in paragraphs (3) and (4); and

• (b) does not apply to facilities by way of banking or insurance or for grants, loans, credit or finance, where facilities are for a purpose to be carried out, or in connection with risks wholly or mainly arising, outside Northern Ireland.

• (3) Regulation 5(1) applies to the provision of facilities for travel outside Northern Ireland where the refusal or omission occurs in Northern Ireland or on a ship, aircraft or hovercraft within paragraph (4).

• (4) Regulation 5(1) applies on and in relation to —

• (a) any ship registered at a port of registry in Northern Ireland; and

• (b) any aircraft or hovercraft registered in the United Kingdom and operated by a person who has his principal place of business, or is ordinarily resident, in Northern Ireland,

even if the ship, aircraft or hovercraft is outside Northern Ireland.

• (5) This regulation shall not render unlawful an act done in or over a country outside the United Kingdom, or in or over that country’s territorial waters, for the purpose of complying with the laws of that country.

SCHEDULE I

SCHEDULE II

Signed

Sealed with the Official Seal of the Office of the First Minister and deputy First Minister on 8th November 2006

Gerry Mulligan — A senior officer of the Office of the First Minister and deputy First Minister

Explanatory note

(This note is not part of the Regulations)

EXPLANATORY NOTE

These Regulations, which are made under section 82 of the Equality Act 2006, make it unlawful to discriminate on the grounds of sexual orientation in the provision of goods, facilities and services, education and public functions.

Sexual orientation is defined in regulation 2 as meaning sexual orientation towards persons of the same sex, persons of the opposite sex, or to both persons of the same sex and of the opposite sex.

Direct discrimination, defined in regulation (3), occurs where a person is treated less favourably than another on grounds of sexual orientation. Indirect discrimination, defined in regulation (3)(1)(b), occurs where a provision, criterion or practice, which is applied generally, puts a person of a particular sexual orientation at a disadvantage and cannot be shown to be a proportionate means of achieving a legitimate aim. Regulation (3)(1)(c) deals with discrimination where a requirement or condition is applied which cannot be justified. Regulation (3)(3) defines harassment, which occurs when a person engages in unwanted conduct which has the purpose of violating the other’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment. Victimisation, defined in regulation 4, occurs where a person receives less favourable treatment than others by reason of the fact that he has brought (or given evidence in) proceedings, made an allegation or otherwise done anything under or by reference to the Regulations.

Regulations 5 to 17 prohibit discrimination in the provision of goods, facilities, services, premises, education and public functions. In particular they define examples (although not exclusively) of the sorts of facilities and services that might be covered by the Regulations. They deal also with the disposal and management of premises (regulation 6) and the various exceptions that apply to that area (regulations 7 & 8). They also extend the protections to those accessing education and educational facilities (regulation 9) and to those accessing public authorities (regulation 12), subject to certain exceptions (regulations 13, 14 & 15). Regulation 16 provides an exception to organisations relating to religion and belief, where the sole purpose of the unlawful action was to practice a religion or belief, to advance a religion or belief, to teach the principles of a religion or belief, to enable persons of a religion or belief to engage in any activity or receive a benefit within the framework of that religion or belief. It does not however extend the exception to organisations whose sole or main purpose is commercial. The Regulations also extend to associations and private members clubs (regulation 17).

Regulations 19 to 25 deal with other unlawful acts, including discriminatory advertising (regulation 20), instructing others to commit unlawful acts (regulation 21) or pressuring others to commit unlawful acts (regulation 22). Regulation 23 deals with liability of employers and principals and makes acts committed by an employee treated as if they had been done by his employer as well by as him. Regulation 24 makes it an offence to aid an act made unlawful by virtue of these Regulations and regulation 25 makes a contract, or terms of a contract, void if they include an act made unlawful by these Regulations.

Regulation 26 deals with charities and provides an exception for them from any provision contained within regulations 5 to 17 in so far as the charity was established to confer a benefit on a particular group by virtue of sexual orientation.

Regulations 27 to 34 deal with the role of the Equality Commission for Northern Ireland. Amongst other things they provide the ECNI with a duty to promote equality of opportunity between persons of differing sexual orientations, provides them with the power to undertake or assist research and education and provide assistance (regulation 28) and with the power to issue codes of practice if they think fit (regulation 29). They are also given the power to conduct formal investigations (regulation 30).

Regulations 36 to 48 deal with the enforcement of the Regulations. As these Regulations deal with matters that fall only to goods, facilities and services, any legal recourse will be for a claim in tort for breach of a statutory duty, except where specific criminal offences are created (regulations 20-22). In both cases recourse will be through the county court. The ECNI is given powers to issue non-discrimination notices (regulation 37) and to deal with the compliance of those notices (regulation 39). Enforcement of regulations 19-22 will only be by the ECNI (regulation 43). Regulation 42 and Schedules 1 and 2 include a questionnaire procedure to assist complainants in obtaining information from respondents, and regulation 45 provides the ECNI with power to provide assistance (legal or otherwise) to claimants under these Regulations. Regulation 46 deals with the timescales within which cases should be brought.

Regulations 49 to 51 provide general exceptions to the Regulations for differences of treatment related to safeguarding national security or protecting public order and public safety. They also provide exceptions for indirect access to benefits, and acts done under statutory authority. Regulation 52 deals with burden of proof in the county court and regulation 53 deals with Crown application. Regulation 54 covers the extent of the Regulations.

A Regulatory Impact Assessment and an Equality Impact Assessment in relation to these Regulations has been placed in the Library of the Northern Ireland Assembly. Copies may be obtained from: Equality, Rights and Social Needs Division, Office of the First Minister and deputy First Minister, Room E3.19, Castle Buildings, Stormont, Belfast BT4 3SR.

Footnotes

Editorial notes