Civil partnerships in Western Isles?

THE recent decision by Comhairle nan Eilean Siar (Western Isles Council), to ensure that couples wishing to exercise their rights under the Civil Partnership Act 2004 will be able to do so, will hopefully prevent the comhairle from falling foul of the proposed extension of rights of individuals from discrimination because of their sexual orientation - or perceived sexual orientation.

This issue involving Comhairle nan Eilean Siar came about after the advent of the Civil Partnership Act 2004 entitling same-sex couples to marry. Comhairle nan Eilean Siar's registrars refused to officiate at these services, meaning same-sex couples were being treated less favourably in terms of the services afforded to them. Further examples have also been reported in the press, when homosexual couples have been turned away from bed and breakfasts. This has led to calls for the loophole to be closed.

From October 2006, it is the intention of the Government to extend the scope of protection from discrimination on grounds of sexual orientation to the provision of services. Although the Government has not published any draft regulations as yet, the term "goods, facilities and services" is used in other pieces of discrimination legislation to denote a very wide range of activities carried out by organisations in both the public and private sector.

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However, this term is not specifically defined in legislation. Instead a broad indication of the range of services covered is given through the inclusion of an illustrative list of examples in the legislation, including accommodation, financial services, transport and access.

In practice, courts have interpreted the scope of goods, facilities and services quite widely, ruling in individual cases that a very diverse range of activities, including many public services provided by government, are caught by the term - the provisions apply regardless of whether or not a charge is made by the provider.

However, it is likely the new regulations will create an exemption for religious organisations. For example, if the activity conflicted with the strongly held beliefs of that religion, it is unlikely to be covered by the act.

While this will not permit public office holders, such as registrars, from carrying out their functions and in particular the conducting of civil partnerships, it may lead to "back door" exceptions for individual public employees, such as registrars, who may seek to claim they are being forced to deal with matters contrary to their religious beliefs. This leaves councils such as Comhairle nan Eilean Siar with the difficulty of recognising individual employee's rights, particularly with regard to religion and belief, to object to performing duties in given circumstances while ensuring a full service is provided for all.

The comhairle has resolved this potential difficulty by giving an undertaking that it will ensure cover is provided and there will be full access to services that should ensure compliance with the proposed new law, even if it means using registrars from other areas.

By introducing these regulations, the Government is treating sexual orientation discrimination on the same basis as discrimination on other grounds, such as disability, sex and race. If the new regulations follow existing discrimination legislation, then they will provide individuals with the right to not to be discriminated against when they attempt to access services as well as providing the right to seek a remedy - by way of Sheriff Court litigation - if they are treated less favourably because of their sexual orientation.

In taking the decision, the comhairle has been proactive in eliminating the possibility of unequal treatment thereby ensuring - timely - equal access to their services while balancing the views of others.

• Craig Bennison is a barrister with Anderson Strathern.