Fight discrimination but safeguard freedom

Letter to Andrew Smith MP
18 March 2007


Dear Mr Smith,

Thank you for your hard work for Oxford East over the years, and thank you in particular for visiting our neighbourhood on Friday to discover what issues we care about. I was sadly unable to take up the opportunity to speak to you on that occasion, but am nevertheless writing in that spirit regarding a highly topical issue about which I care deeply.

Two convictions
I would like to start with two statements of conviction that I do not believe are particularly controversial, and with which most of your constituents, and the British people in general, would agree. They are as follows:

1. No-one should be discriminated against because of their sexual orientation. The provision of goods, services, facilities or education should not be restricted to anyone unless others are likely to suffer significantly as a result of doing otherwise. It is unacceptable that anyone should not, for example, be allowed to eat in a restaurant or get life insurance simply because of their sexual orientation.
   
2. No-one should be forced to promote behaviour, attitudes or beliefs to which they are personally opposed. Examples include (i) the belief in the existence or non-existence of God; (ii) the belief that the Labour Party are more competent to govern the country than the Conservative Party; or (iii) the belief that heterosexual sexual expression is more healthy than homosexual sexual expression. All these – whether they are true or not – are matters of personal conviction and should be subject to the conscience of the individual and not enforced by law.
   

Equality versus Liberty
I welcome the Labour Party’s commitment to social justice and the protection of the rights of minorities. In particular, I support the principled intentions behind the Equality Act and the Sexual Orientation Regulations (SORs). I am, however, very concerned that the legislation as currently drafted, whilst seeking to enshrine the first principle in law, does not take sufficient account of the second principle, and may therefore have an unacceptable impact on freedom of conscience.

Furthermore, the process by which the legislation is proceeding through committees means that it is not subject to sufficient scrutiny to allow its weaknesses to be identified and corrected. I am aware, for example, that the Joint Committee on Statutory Instruments which met on Tuesday (13 March) gave the SORs the ‘all clear’ even though a number of committee members raised serious questions. Important legislation which will potentially have a profound impact on personal liberty surely deserves a full Parliamentary debate.

Undesirable consequence
Most of the content of the SORs, as currently drafted, do not cause me concern. There is however an unintended and very worrying consequence of the SORs in their current form: that some people with convictions (whether religious, scientific, ideological, or whatever) that the sexual practices of those of a particular sexual orientation should not be promoted will by law be forced to promote such practices. These practices could, as I understand it, be homophilia, heterophilia, sado-masochism, vampirism, coprophilia, or any other type of (legal) sexual practice. The type of people that could be affected by such legislation include printers, broadcasters, and the owners of rentable venues, and no doubt others besides.

It is inevitable that as the regulations currently stand, there will be individuals who will have to choose between their own conscience and the law. This is surely an unnecessary consequence of badly-drafted legislation.

The printer’s dilemma
To take the example of the printer, if a given printer has qualms about printing a certain type of literature, they should surely have the freedom to decline the work if it involved promoting behaviour or beliefs to which they were opposed. This should apply across the board. For example, they should not have to print pro-Trident posters if they are set against nuclear weapons, or print pro-animal-testing fliers if they are a strong supporter of animal rights. There will inevitably be printers who are happy to print such material, but those whose consciences speak against them should be allowed to opt out of the promotion of such practices and/or ideology.

A better way
The regulations should make provision for individuals legally to opt out of the promotion of practices and/or ideology to which they are personally opposed.

I think there is an important distinction to be made between being forced by law to allow consenting adults to engage in consensual sexual activities – of whatever ‘flavour’ – and being forced by law to promote certain sexual activities. Whilst legislating to ensure the former will inevitably be controversial, legislating to ensure the latter is surely unacceptable: yet this is what the SORs will end up doing!

Provision should be made in the SORs for an individual to conscientiously opt-out of the promotion of sexual activities to which that individual is opposed. In doing so the Government will be able to legislate to ensure that discrimination on the grounds of sexual orientation – where it matters – is made illegal (promoting principle 1), whilst at the same time preserving the freedom of individuals to follow their consciences (safeguarding principle 2). By taking account of the subtleties of the matter and anticipating the unintended consequences outlined above, the Government will be able to achieve what they set out to do as regards discrimination whilst preserving freedom of conscience. As they currently stand, the SORs will make such discrimination illegal, but the price paid in terms of personal liberty will be unacceptably high.

My plea to you
In light of the above, I would urge you, as my MP, to be present and formally object to the SORs being laid on the floor of the House of Commons on Monday 19th March at the close of Parliamentary business, and, if the opportunity arises, to vote against the regulations.

I would be very happy to discuss this matter further with you.
With best wishes,
Yours sincerely,

Jonathan Mobey