This article is an update to my main paper “Discrimination against British Christians”.
THE EHRC HUMAN RIGHTS REVIEW 2012
It was not until the Human Rights Act 1998 (HRA) that legislation recognised a general legal right to religious freedom. This allows religious organisations to discriminate over employment and provision of services in specific circumstances. For example, a synagogue can have separate seating for men and women at a reception following a religious service; the Catholic Church can require that a Catholic priest be an unmarried man; and a Muslim faith school can require for a successful applicant for a headship which includes a religious role to, be a Muslim.
The Equality and Human Rights Commission (EHRC) produced its Human Rights Review 2012 entitled “How fair is Britain?” and included comment on Article 9 of the European Convention on Human Rights “The right to freedom of thought, conscience and religion.”
Article 9:2 states that “Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”
This immediately raises important questions. Who defines the term “morals”? Many Christians would claim that in disapproving of homosexual practice they are protecting morals. Others would strongly disagree.
Even more important is when there is a clash of rights and freedoms, who decides which rights and freedoms take precedence? This issue is a main cause of concern to Christians who see their religious rights and freedoms being curtailed because of the rights and freedoms of those who disagree with them.
The EHRC Review refers to these issues: “Courts are setting too high a threshold for establishing ‘interference’ with the right to manifest a religion or belief, and are therefore not properly addressing whether limitations on Article 9 rights are justifiable. Indirect discrimination provisions in domestic law covering protection for individual beliefs may not be consistent with Article 9.” It quotes Lord Nicholls comments in the Williamson case (2005): “Religious and other beliefs and convictions are part of the humanity of every individual. They are an integral part of his personality and individuality. In a civilised society individuals respect each other’s beliefs.”
The Review accepts that manifestation of religion “can occur through worship, teaching and proselytism, observation by wearing symbols or special clothes, or by eating or avoiding certain foods.”But it points out that the right to manifest a belief is a qualified, “for example, by uniform policies at work or school, or requirements to work at certain times or carry out certain tasks.”
It quoted the British Social Attitudes Survey 2009 which stated that just 2% of religious people in Britain said that they had experienced discrimination or harassment because of their religion or beliefs in the previous 12 months.
The Review acknowledges that “the recent lack of success of some claimants who bring cases under Article 9 or the Equality Act (or its predecessor legislation) has prompted some religious groups to argue that the right to manifest religion or belief is treated by the law as a ‘lesser right’ than others. They argue that religious discrimination claims are too readily trumped by the aim of preventing discrimination on other grounds.” But it comments: “This view does not appear to be widely held, however, among the representatives of different religious groups” and that some secular groups believe religious groups enjoy more protection than they do.
The Review recorded that “The UN Special Rapporteur on freedom of religion or belief found in 2008 that the UK government had ‘balanced approaches in responding to difficult situations with regard to freedom of religion or belief and the contentious issues involved’ and welcomed the case-by-case approach which allowed each complaint to be judged according to particular circumstances.”
The EHRC believes that British courts have taken the appropriate approach in cases balancing competing interests and states: “The Commission believes that an employer may legitimately refuse to accommodate an individual’s religious beliefs where such accommodation would involve discrimination on the basis of other protected characteristics.” However it goes on to state: “The Commission believes that domestic courts are setting too high a threshold for the preliminary question whether there has been an interference with the right to manifest a religion or belief and that, as a result, they are too often failing to consider the question of justification.”
The Review records a new approach in the European Court of Human Rights: “That Court has become more ready to accept claims of interference with applicants’ rights to manifest belief, and to focus on the question of justification. This is an approach the Equality and Human Rights Commission welcomes.”
The EHRC also refers to indirect discrimination where a rule or practice applicable to everyone has a disproportionate adverse effect on a particular group of people, such as people sharing a specific religious belief. It comments: “The European Court of Human Rights has, until recently, tended to take the view that a practice amounted to the ‘manifestation’ of a religion or belief only if required by the particular religion or philosophical belief. In recent judgments, however, the Court has found that Article 9 protects religious practices not prescribed by a religion, thus suggesting that personal rather than group belief is protected.”
Finally, the Commission says that British courts “should comply with the obligation imposed by the Human Rights Act 1998 to interpret equality legislation compatibly with the Convention. The Convention should be followed to ensure that the requirement to demonstrate group disadvantage does not overwhelm an individual right to manifest a belief. The question of justification would still remain for the courts to determine.”
This is relevant to a cases like Nadia Eweida, the British Airways employee who was asked to cover up a necklace which included a cross, and Shirley Chaplin, the nurse who was banned from working on hospital wards after she refused to remove a cross from her neck, because wearing a cross is a personal preference, not something required by Christianity.BBC DIRECTOR: CHRISTIANITY TREATED WITH LESS SENSITIVITY
Mark Thompson, Director of the BBC, stated in February 2012 that other faiths tend to receive more sensitive treatment by the BBC because they have “very close identity with ethnic minorities.” This seems a valid policy, within reason. However, the BBC does seem to go beyond the line at times and to treat Christianity with contempt. Fair criticism is acceptable but extensive ridicule is not. For example it is rather wearisome that in TV drama clergy are all too often portrayed as hypocrites, weirdos or criminals.
He stated that he was a “practising Catholic” and added: “One of the mistakes secularists make is not to understand the character of what blasphemy feels like to someone who is a realist in their religious belief.”
MALEIHA MALIK, PROFESSOR OF LAW, ON RELIGIOUS FREEDOM
Maleiha Malik is Professor of Law at King’s College, London. She pleads for an approach to religious freedom based on tolerance rather than rights. She said:
“I want to suggest that current framings of the issue in relation to the right to religious freedom, or in terms of equality and non-discrimination, have led us into an impasse. The debate collapses into a clash of rights or a clash of equalities – ‘my right to religious freedom or equality versus your right to equality on the grounds of sexual orientation’. My view is that the principle of tolerance does more useful work.
“The speech/conduct distinction also becomes crucial. Those with strong religious beliefs about women, gays and lesbians can hold that view or express that view; BUT they cannot act on their belief in ways that constitute discriminatory harassment (via speech) or discriminatory acts (via conduct).”
Professor Malik points out that the law already allows religious people “significant exemptions to discriminate against gays and lesbians. As a society, we’ve reached an agreement about the balance between the rights of the religious and equality for women, gays and lesbians enshrined in our recent legislation. If the religious want to rebalance this, then they should join with their fellow citizens for reform of the Equality Act 2010.”
She believes the Ladele judgment (the former registrar, disciplined by Islington Council for refusing to conduct same-sex civil partnership ceremonies) was correct because “it would be a significant step backward if, having won the fight for the right to same-sex civil partnerships, gay and lesbian couples could be shunned by the very people charged by us as a society with solemnizing.” She added: “There should be no accommodation for the religious where the exemption is from a key ‘constitutional’/human rights or equality value. Individuals cannot expect to directly influence the provision of public services to the general public to conform with their personal religious where that accommodation constitutes a breach of the constitutional/human right of another citizen.”
However, we repeat the argument outlined above in the main paper: The law helpfully already allows religious organisations to discriminate when they appoint staff whose work clearly requires them to follow a particular religion. Also, churches and similar religious bodies have been given the option of not celebrating civil relationships (the main issue being homosexual civil relationships). It follows that the law also could and should allow registrars the option of not conducting same-sex civil partnership ceremonies (the clients being dealt with by other colleagues happy to do so).
CHRISTIAN RADIO STATION LOSES BATTLE OVER ADVERT
Premier Radio wanted to broadcast an advert asking Christians to report their experiences of marginalisation in the workplace but the courts have supported the Radio Advertising Clearance Centre (RACC) refusing to approve the advert. It is claimed that the advert had a political aim and so was contrary to broadcasting prohibitions on political advertising.
Peter Kerridge of Premier Radio claimed that the decision was a direct threat to freedom of speech and is “wholly reminiscent of a totalitarian state.”
TWO DIFFERENT VIEWS OF EQUALITY
It is obvious that a big issue facing British Christians today is the relationship between Article 9 of the European Convention on Human Rights about the right to freedom of religious practice and Article 14 about the prohibition of discrimination. Megan Pearson, a doctoral researcher at the London School of Economics specialising in the clash between articles 9 and 14, refers to the clash of two different world views. Pearson says that the modern western mindset is dominated by the Enlightenment concept of the individual; a non-gender-specific, autonomous body with personal rights and freedoms. “But the Christian view is that we are not individuals. We are persons in relationships and as you try to build stable community bodies there is a differentiation of roles.” Men and women are equal but different and that difference is important to the functioning of our society.
Pearson claims that for the secular modern world justice is justice for the individual (and equality the way to achieve that), but for the Christian it is communal and is achieved by fulfilling the needs of others. She suggests that any interference with an individual’s rights should be proportionate to the interests of society. This could be interpreted as balancing justice for the individual against justice for the community.
AN UNLIKELY ALLIANCE
The National Secular Society and the Christian Institute, with others, have formed ‘Reform Section 5’ which is calling on the Home Secretary to amend the Public Order Act, which outlaws ‘insulting words or behaviour’. Section 5 of the Act states:
Harassment, alarm or distress.
1. A person is guilty of an offence if he-
(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or
(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.
They argue that the word ‘insulting’ is unclear, and allows for controversial arrests. So, for example, Dale McAlpine, a Christian street preacher was arrested simply for saying homosexual practice is a sin and a student was arrested for holding a placard saying “Scientology is a cult”. Christians (and others) could easily be arrested for making reasonable critical comments about other views or behaviour. Keith Porteous of the National Secular Society was surely correct when he said: “Freedom only to say what others find acceptable is no freedom at all.”
In the main paper I concluded:
- That recent high profile cases of Christians being penalised for wearing Christian symbols (including in hospitals where people of other faiths are allowed to do the equivalent), for sensitively praying (as a health professional) with or sharing their faith with patients, for refusing (even as professionals) certain involvement with homosexuals should not have happened.
- That the new legislation on equality needs to be reassessed so that religious freedom is not undermined.
- Both judges and employers sadly have accepted the propaganda that Britain is no longer a Christian country in terms of public opinion.
- That some people in the pro-gay lobby are using the gay issue not just to seek respect and equality for homosexuals but to use the issue (quite effectively) as a Trojan horse to marginalize orthodox Christians and the church. It is proving very effective.
- That Christianity is being marginalised in judicial proceedings, employment, as well as in parts of the media.
Finally, I wrote: “Are British Christians being “persecuted”? Well …. no, not yet. But some are being discriminated against and oppressed, including by well-meaning but misled people, and the future is likely to be even more difficult for them.”
This update shows that:
- The Equality and Human Rights Commission is critiquing the courts’ approach to religious freedom, particularly to manifest a religion or belief, and particularly the rights of the individual in this respect. It clearly thinks the courts have sometimes got this wrong. But the EHRC (and some legal experts) still upholds some of the judgments which I believe are not justified.
- The BBC accepts it discriminates against Christianity because it is not associated with an ethnic minority.
- One of the problems is modern western individualism with its over-emphasis on the rights of the individual (a non-gender-specific, autonomous body with personal rights and freedoms) as opposed to the Christian view which values the individual but also emphasizes community where people are equal but different and that difference is important to the functioning of our society.
- Both Christian and secular groups are working together to remove the very unhelpful use of the word “insulting” in section 5 of the Public Order Act which has been used to curb proper freedom of expression.
© Tony Higton: see conditions for reproduction