These regulations must be read and given effect in a way that is compatible with fundamental human rights and freedoms. Those include freedom of religion, conscience, speech, association and non-discrimination. Therefore, when courts have to interpret and apply regulations, they must make quite sure that they do not disproportionately or excessively encroach upon those fundamental freedoms.
Although freedom of religion is a vital freedom, as are freedom of conscience and freedom of speech, so is equal treatment without discrimination. The European Convention on Human Rights provides that everyone is entitled to the enjoyment of the rights in that Convention without discrimination, covering, for example, sexual orientation. There must be no discrimination based on sexual orientation in education, otherwise Article 2 of the first protocol of the convention, read with Article 14, would be breached.
Without these regulations, a victim of sexual orientation discrimination in access to education would have no remedy, and the UK would be in breach of Article 13 of the European Convention, which says that there must be an effective national remedy.
The regulations are also not in a vacuum so far as concerns our own law. They are in virtually identical form to the employment equality regulations dealing with sexual orientation of 2003. These regulations extend the prohibition of discrimination from employment to education, goods, services, facilities and public sector duties. What had already been done for gender, race and religion, is now to be achieved for sexual orientation. There has been no problem in the interpretation and application of the 2003 regulations. .
Concern has been expressed about the harassment provisions in these regulations. But harassment against gays is a particularly widespread social evil in this country, and harassment is already covered by the general law in the Protection from Harassment Act, as well as in S 4A of the Public Order Act dealing with acts done with intent intent to cause a person harassment, alarm or distress.
The freedom to manifest their religious beliefs or lack of belief is not absolute, but is subject to
‘such limitations as are prescribed by law and are necessary in a democratic society ……. for the protection of the rights and freedoms of others’.
The regulations are consistent with this principle, but if the law were ever to be used in a manner inconsistent with the European Convention on Human Rights, an aggrieved person has the right to challenge its application in the domestic courts and at Strasbourg.