Joint Committee on Statutory Instruments Press Notice 3 (2002-03)

Session 2002-03                13 June 2003

Committee questions legality of regulations on sexual orientation discrimination


The Joint Committee's Twenty-first Report of the current Session, HC 96-xxi, is published at 10.00 am on Friday 13 June.

In its report the Committee draws the special attention of both Houses to the draft Employment Equality (Sexual Orientation) Regulations 2003, which were laid before Parliament on 8th May. 

The Committee has expressed no view, and has no authority to express any view, as to the merits or otherwise of the draft Regulations or the policy objective they are intended to achieve, as its terms of reference preclude it from doing so.

The Committee was concerned with the legality of regulation 7(3). This would allow an employer to discriminate on grounds of sexual orientation, subject to certain conditions, where employment was for the purposes of an organised religion.  The Committee found that there was a doubt as to whether regulation 7(3), in the terms in which it was drafted, was compatible with the European Equality Directive which the Regulations implement, and therefore there was a doubt as to whether the Secretary of State had power to include it in the Regulations.  The doubt was sufficiently significant for it to be drawn to the attention of both Houses.

Similar doubts did not arise in relation to regulation 7(2), which would allow for discrimination by any employer on the grounds of sexual orientation where a genuine occupational requirement exists.

David Tredinnick MP, Chairman of the Joint Committee, said:

"The Committee has examined these Regulations and has found that there is a doubt as to whether regulation 7(3), as it is drafted, is allowed by the European Equality Directive.  This therefore gives rise to a doubt as to whether the Secretary of State has power to include it in the Regulations. In our opinion, the doubt is sufficiently significant that it should be drawn to the special attention of both Houses before they debate the Regulations."

"The Committee can offer no definitive ruling as to whether, in including regulation 7(3), the Secretary of State is acting within the powers delegated by Parliament.  That is a matter for the courts to decide.  But it is the Committee's function to inform both Houses if it believes that Parliament is being asked to approve secondary legislation which may fall outside the powers conferred on Ministers to make it."

"The Committee has expressed no view, and has no authority to express any view, as to the merits or otherwise of the draft Regulations or the policy objective they are intended to achieve, as its terms of reference preclude it from doing so."

Copies of the report may be purchased from the Parliamentary Bookshop (12 Bridge St, Westminster, SW1A 2JX, Tel 020 7219 3890) or from any  Stationery Office outlet (Parliamentary Hotline 0845 702 3474).  It will also be available on the Committee's publications website (http://www.publications.parliament.uk/pa/jt/jtstatin.htm) from 3.30 pm on the day of publication.


Notes for Editors:

1. The Joint Committee on Statutory Instruments is appointed by both Houses to examine statutory instruments laid before Parliament on a number of specified technical grounds.  Its terms of reference are set out in its Standing Orders (House of Commons Standing Order No. 151 and House of Lords Standing Order No. 74). 

2. The Joint Committee may report to both Houses on matters arising from its terms of reference. It can require Departments to send officials to appear before it in order to explain statutory instruments under consideration.  It may not report on the merits of any statutory instrument or the policy which lies behind an instrument. It does not have the power to block the passage of statutory instruments through Parliament.

3. The Joint Committee considers on average 1500 instruments per session, and will, in a typical session, draw between 50 and 100 of these to the special attention of both Houses on a variety of grounds.

4. The Regulations in question are intended to implement in part the provisions of EC Directive 2000/78/EC (establishing a general framework for equal treatment in employment and occupation) in UK law. They are draft instruments subject to affirmative resolution (i.e. they must be approved by both Houses before they are made law). 

5. The draft Regulations are set down for debate in the House of Lords on Tuesday 17 June.  It is expected that they will be debated in Standing Committee in the House of Commons on Tuesday 17 June.