Background
In
the United Kingdom, the domestic law protects those with a religious belief and
those (such as atheists or secularists) who have a philosophical belief.
The
legislation that included belief as an alternative to religion commenced with
the Employment Equality (Religion or Belief) Regulations 2003, which transposed
the provisions of the European Directive concerning the work environment. The definition was strengthened in the Equality
Act 2006, which prohibited discrimination on the grounds of religion or belief
with regard to goods, services and facilities.
The
same definition was tightened in the Equality Act 2010, to include prohibiting
the discrimination of one division of a religion or belief upon the adherent of
another division.
There
had already been the implementation of the European Convention on Human Rights
through the passing of the Human Rights Act 1999, which gave people the
absolute right to ‘freedom of thought, conscience and religion’ with
limitations on people’s right to manifest their religion or belief.
This
paper seeks to address the question as to whether religion and belief should be
treated as separate entities or should continue to be treated as one protected
characteristic (formerly known as a diversity strand).
Quite
unlike any other strand, it is completely disjointed and unsustainable. People
from different faiths, with different theologies could be invited to come
together for strand purposes (such in the Faith Communities Consultative
Council (FCCC), organised by the Department for Communities and Local
Government). It was recognised that it would be difficult to do so with
humanists and secularists (who are, in turn, not invited to the FCCC) whose
belief systems stand in diametric opposition to that of their own. The beliefs
of the various religions exist to affirm belief in a transcendent reality and
the other organisations exist for the very purpose of negating that contention,
so to put the two together is profoundly unfair. It makes it quite impossible
for a protected characteristic to function; effectively denying those concerned
what other protected characteristics enjoy - the ability to operate. Placing
religion and belief in the same protected characteristic has thrown it into
paralysis. The protected characteristics reflect the law which should be
changed at the earliest opportunity to set the two in different protected
characteristics.
Under
this paradoxical definition, true religion suffers ‘friendly’ fire on one side
from “any” philosophical belief or “lack of religion,” and on the other, it may
be diminished to become tantamount to political or other (such as climate
change) belief. Religion and belief has been set up as the one strand that runs
the risk of being contradictory in itself and being resolutely opposed to the
raison d’étre of each other within the constituent components of the protected
characteristic.
It
will be argued that the two are distinct entities and should, therefore, be
treated separately.
The Dictionary
Definition
In
the Oxford English Dictionary, there is clear differences between the concepts
of religion, belief and, indeed, philosophy.
The
definitions are as follows:
Religion
– ‘A particular system of faith and worship. Action or conduct indicating a
belief in, reverence for, a desire to please, a divine ruling power; the
exercise or practice of rites or observances implying this. Recognition on the
part of man of some higher unseen power as having control of his destiny and as
being entitled to obedience, reverence and worship..’
Belief
– ‘Mental acceptance of a proposition, statement or fact as true, on the ground
of authority or evidence; assent of the mind to a statement or the truth of a
fact beyond observation on the testimony of another, or to fact or truth on the
evidence of consciousness; the mental condition involved in this assent.’
Philosophy
– ‘A particular system of ideas relating to the general scheme of the universe;
a philosophical system or theory. Also more generally, a set of opinions, ideas
or principles, a basic theory, a view or outlook. Used especially of knowledge
obtained by natural reason, in contrast to revealed knowledge.’
According
to Oxford University’s ‘World Christian Encyclopaedia,’ 84 per cent of the world’s population belong to some form of
organised religion, equating to 5.7 billion people who subscribe to
approximately 10,000 distinct religions with further subdivisions. There are no
statistics for people who follow any particular belief system that does not
have a religious ethos.
Interestingly,
in a survey conducted in the United States, 21 per cent of those who identified
themselves as atheists and 55 per cent of those who identified themselves as
agnostic expressed a belief in God or a universal spirit.[1]
The
overlap of the concept that religion and belief are comparative alternatives
has been challenged by the global resurgence of religion, which has challenged
the concept of public religion in this way. It takes issue with the idea that
secular reason can provide the neutral stance from which to interpret religion
with the multiplicity of being ‘modern,’ making ‘progress,’ or being
‘developed.’[2]
A
commentator has stated: ‘… the modern state has…depended for its
conceptualisation on the related concept of religion as a private right of
faith in unseen mystical powers separated from the state…’[3]
In
a further article, he writes: ‘I suggest that both socialist and liberal
capitalist economics have been different stages in, and different forms of, the
same processes which transformed the meaning of Religion from Christian truth
to one of a large range of dubious practices that should be tolerated but
marginalised. In both cases we find the mystification of secular reason and
‘progress,’ and the reduction of alternative moral discourses which might challenge
both state socialism and liberal (or neo-liberal) capitalism.’[4]
There
is the thinking by scholars, particularly of early modern European history,
that the modern concept of religion as a set of privately held doctrines or
beliefs to societies that had yet to make this transition has caused confusion
in our reading of such history.[5]
The
difference between a religion and a belief in the modern arena has been
usefully summarised by Neil Addison as religion being communal whereas belief
is personal – ‘religion is what I do, belief is what I think.’[6]
International
Declarations
In the Universal
Declaration of Human Rights Article 18 (passed in 1948), it states: ‘Everyone
has the freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in
community with others and in private, to manifest his religion or belief in
teaching, practice, worship and observance.’
The next
publication on this matter was the International Covenant on Civil and
Political Rights[7], which was adopted and opened
for signature, ratification and accession by the United Nations General
Assembly resolution 2200A (XXI)of 16 December 1966 and there was entry into
force 23 March 1976, in accordance with Article 49.
Article 18
1.
Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of
his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
2. No one
shall be subject to coercion which would impair his freedom to have or to adopt
a religion or belief of his choice.
3.
Freedom to manifest one's religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others.
4. The
States Parties to the present Covenant undertake to have respect for the
liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
There
was specific reference to religion in the United Nations Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on Religion
(proclaimed by the General Assembly resolution 36/55 of 25 November 1981), which read as follows:
Article 1
1. Everyone shall have the right to freedom
of thought, conscience and religion. This right shall include freedom to have a
religion or whatever belief of his choice, and freedom, either individually or
in community with others and in public or in private, to manifest his religion
or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion
which would impair his freedom to have a religion or belief of his choice.
3. Freedom to manifest one’s religion or
belief may be subject only to such limitations as are prescribed by law and are
necessary to protect public safety, order, health or morals or the fundamental
rights and freedoms of others.
Article 2
1. No one shall
be subject to discrimination by any State, institution, group of persons, or
person on the ground of religion or other belief.
2. For the purposes of the present
Declaration, the expression ‘intolerance and discrimination based on religion
or belief’ means any distinction, exclusion, restriction or preference based on
religion or belief and having as its purpose or its effect nullification or
impairment of the recognition, enjoyment or exercise of human rights and
fundamental freedoms on an equal basis.
Article 3
Discrimination
between human being on the grounds of religion or belief constitutes an affront
and a disavowal of the principles of the Charter of the United Nations, and
shall be condemned as a violation of the human rights and fundamental freedoms
proclaimed in the Universal Declaration of Human Rights and enunciated in
detail in the International Covenants on Human Rights, and as an obstacle to
friendly and peaceful relations between nations.
Article 4
1. All States shall take effective measures
to prevent and eliminate discrimination on the grounds of religion or belief in
the recognition, exercise and enjoyment of human rights and fundamental
freedoms in all fields of civil, economic, political, social and cultural life.
2. All States shall make all efforts to
enact or rescind legislation where necessary to prohibit any such
discrimination, and to take all appropriate measures to combat intolerance on
the grounds of religion or other beliefs in this matter.
European Convention and
Directive
The
European Convention on Human Rights (which was initially signed in 1950 with
subsequent Protocols) was incorporated by the United Kingdom into the Human
Rights Act 1998. The main Articles that relate to this subject are as follows:
Article 9
1. Everyone has the right to freedom of
thought, conscience and religion; this right includes the right to change his
religion or belief and freedom, in community with others and in public or
private, to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or
belief shall be subject only to such limitations as are prescribed by law and
are necessary in democratic society in the interests of public safety; for the
protection of the rights and freedoms of others.
Article 10
1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive
and impart information and ideas without interference by public authority and
regardless of frontiers. This Article shall not prevent States from requiring
the licencing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it
carries with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions and penalties as are prescribed by law
and are necessary in a democratic society, in the interests of national
security, territorial integrity or public safety for the prevention of disorder
or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information
received in confidence, or for maintaining the authority and impartiality of
the judiciary.
The
approach of the courts and tribunals in the United Kingdom has been to choose
one of the Articles as being the principal and decide the case by reference to
that right.
There
was, subsequently, the Employment Equality Directive (2000/78/EC) issued by the
European Commission. It related to the protection of persons with regard to age,
disability, sexual orientation, and religion or belief in employment matters.
It deliberately used the term ‘religion or belief,’ although it did cause
difficulties for the Member States in implementing it.
There
was a report[8] on the implementation of the European
Directives, which highlighted the difficulties in the definition:
‘Definition: no Member State has a
definition fixed in the law with regard to religion or belief. NL includes
“philosophy of life” into the definition, giving a broad interpretation of the
concept. In Austria, the explanatory notes for the Federal Equal Treatment Act
states that the ‘Framework Directive’ states that the terms religion and belief
must be interpreted broadly. Matter of interpretation by national courts or
some countries provide further guidance in accompanying notes to legislation,
such as in Belgium, France and Germany.
‘Implementation of the provisions of the
Employment Equality Directives, controversies relate to the exceptions provided
for organised religions (e.g. churches) and organisations with an ethos
based on religion or belief (e.g. religious schools). The Directive
provides a rather complex exception in Article 4 (2) which allows employment
requirements on the basis of religion or belief acceptable. Some states have
provided exceptions that go beyond the strict terms of the Directive (e.g.
Hungary and Croatia) or which remain ambiguous (e.g. Greece, Ireland, Italy,
Romania and the United Kingdom). France, Portugal and Sweden did not adopt any
exception clause for employers with an ethos based on religion or belief. An
infringement procedure has been initiated against the Netherlands for incorrect
implementation of that provision, as the Dutch implementing provision does not
correspond to the wording of the Directive.’
‘Case law: gradual increase in case law
arising since the adoption of the Directives stemming from controversy over
requirements on dress codes and religious symbols (Belgium, Denmark, France,
Germany, Greece, Italy, the Netherlands, Sweden and the United Kingdom.’
On
page 1 of the same document is the telling paragraph: ‘The Racial Equality
Directive and the Employment Equality Directive require Member States to prohibit
discrimination on the grounds of racial or ethnic origin, religion or belief,
disability, age and sexual orientation. The Directives do not contain any
definition of these grounds [their emphasis].’
Professor
Peter Trigg of Kellogg College, Oxford and the founding President of the
British Society for the Philosophy of Religion has stated that judges are
increasingly curtailing the religious views of people in favour of other
‘social priorities.’ He discovered that there was proof of how religion was being
relegated by the judiciary under the ‘hierarchy of rights,’ the result was that
the courts were ‘limiting human freedom itself.’ His clarion call was that the
rights were to be ‘balanced’ with ‘reasonable accommodation’ being taken into
consideration. He commented that ‘No State can be a functioning democracy
unless it allows its citizens to manifest their beliefs about what is most
important in life.’[9]
A
religious belief and, by that equation, a philosophical belief does not have to
be ‘worthy of respect’ to be protected under Article 9; but the manifestation
of that religion or belief will not be protected under Article 9 if the
manifestation is not compatible with human dignity.
This
principle was expressed in paragraph 49 of the judgement of the European Court
of Human Rights in the case of Handyside v UK [1976] 1 EHRR: ‘Freedom of
expression constitutes one of the essential foundations of such a society, one
of the basic conditions for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are
favourably received or regarded as inoffensive or as a matter of indifference,
but also that offends, shocks or disturbs the State or any sector of the
population. Such are the demands of that pluralism, tolerance and
broadmindedness necessary without which there is no ‘democratic society’.’
In Manoussakis v Greece [1996] EHRR 387,
paragraph 47, it was determined that there was no discretion by the State to
ascertain whether the religious beliefs or the means to express such beliefs
were legitimate.
It
was held in McFeely v UK [1981] 3
EHRR 161 that a ‘belief’ was to be more than just ‘mere opinions or deeply held
feelings,’ but that it was to have a spiritual or philosophical conviction with
an identifiable content.
It was
also adjudged that ‘freedom of thought, conscience and religion’ applied to
those with a religious belief and those without, according to the judgement in Kokkinakis v Greece [1994] 17 EHRR 397,
paragraph 31.
European
Judgement
In
the case of Lautsi and others v Italy
in the Grand Chamber of the European Court of Human Rights (Application
30814/06), the judgement of 18 March 2011 emphasised the importance of traditional
Christian doctrine in the historical perspective of the European States. This
case was brought by a person with regard to crucifixes in the classroom but the
principles are the same with regard to any aspect of life.
The
judges quoted the Italian Administration Court with approval:
’11.1
at this stage, the Court must observe, although it is aware that it is setting
out along a rough and in places slippery path, that Christianity, and its older
brother Judaism – at least since Moses and certainly in the Talmudic
interpretation – have placed tolerance towards others and protection of human
dignity at the centre of their faith.
‘Singularly,
Christianity – for example through the well-known and often misunderstood
“Render unto Caesar the things that are Caesar’s and unto…” – through its
strong emphasis placed on love for one’s neighbour, and even more through the
explicit predominance given to charity over faith itself, contains in substance
those ideas of tolerance, equality and liberty which form the basis of the
modern secular State, and of the Italian State in particular.
’11.2
Looking beyond appearances makes it possible to discern a thread linking the
Christian revolution of two thousand years ago to the affirmation in Europe of
the right to liberty of the person and to the key elements in the Enlightenment
(even though that movement, historically speaking, strongly opposed religion),
namely the liberty and freedom of every person, the declaration of the rights
of man, and ultimately the modern secular State. All the historical phenomena
mentioned are based to a significant extent – though certainly not exclusively
– on the Christian conception of the world. It has been observed – judiciously
– that the rallying call “liberty, equality, fraternity” can be endorsed by a
Christian, albeit with a clear emphasis on the third word.
‘In
conclusion, it does not seem to be going too far to assert that, through the
various twists and turns of European history, the secular nature of the modern
State has been achieved at a high price, and was prompted in part, though of
course not exclusively so, by more or less conscious reference to the founding
values of Christianity. That explains why in Europe and in Italy many jurists
belonging to the Christian faith have featured among the strongest supporters
of the secular State…’
The
judgement continued:
’11.6
Moreover, with the benefit of hindsight, it is easy to identify in the
constant central core of Christian
faith, despite the inquisition, despite anti-Semitism and despite the crusades,
the principles of human dignity, tolerance and freedom, including religious
freedom, and therefore, in the last analysis, the foundations of the secular
State.
’11.7
By studying history carefully, from a suitable distance, not from up close, we
can clearly perceive an affinity between (but not the identity of) the “hard
core” of Christianity, which, placing charity above everything else, including
faith, emphasises the acceptance of difference, and the “hard core” of the
republican Constitution, which, in the spirit of solidarity, attaches value to
the freedom of all, and therefore constitutes the legal guarantee of respect
for others. The harmony remains, even though around those cores – both centred
on human dignity – there have been numerous accreditations of extraneous
elements with the passage of time, some of them so thick as to obscure the
core, particularly the core of Christianity…
The
judgement of the Administration Court, quoted in approval by the European Court
of Human Rights also continued:
’13.3…In
Christianity even the faith in an omniscient god is secondary in relation to
charity, meaning respect for one’s fellow human beings. It follows that the
rejection of a non-Christian by a Christian implies a radical negation of
Christianity itself, a substantive abjuration; but that is not true of other
religious faiths, for which such an attitude amounts at most to the
infringement of an important precept.
’13.4
The cross, as the symbol of Christianity, can therefore not exclude anyone
without denying itself; it even constitutes in a sense the universal sign of the
acceptance of and respect for every human being as such, irrespective of any
belief, religious or other, which he or she may hold…’
In
June 2011, judges at the European Court of Human Rights in Strasbourg ordered
Ministers of the United Kingdom to make a formal statement on whether
Christians’ rights have been infringed in the British courts that had
continuously found against them according to their beliefs.
The
four cases selected by the court were Lillian Ladele and Gary McFarlane
(regarding issues on same-sex relations in the workplace) together with Nadia
Eweida and Shirley Chaplin (the latter two for wearing crosses at work). It was
considered that that these cases were of such significance that they should be
considered further. When ministers respond, the court will decide whether to
hold full hearings.
The
cases could conclude on how religious beliefs should be balanced against
equality laws to prohibit discrimination against other groups.
Andrea
Minichello Williams, director of the Christian Legal Centre, said of the
referral: ‘These cases are massively significant on every front. There seems to
be a disproportionate animosity towards the Christian faith and the workings of
the courts in the UK has led to deep injustice.
‘If
we are successful in Strasbourg I hope the Equalities Act and other diversity
legislation will be overhauled so that Christians are free to work and act in
accordance with their conscience. David Cameron [the Prime Minister] now needs
to put his money where his mouth is.’[10]
The
Equality and Human Rights Commission (EHRC) launched a public consultation on
the interpretation of human rights laws on religion or belief cases after it
was granted permission to intervene in the four cases. The body described it as
an ‘unprecedented opportunity to clarify the legal principles that should apply
to all, claims of religious discrimination.’ In the consultation, the
organisation was to have collected views on whether the correct principles were
applied to the crucifix cases to ensure that freedom of religion and belief
under the European Convention on Human Rights was properly respected, and
whether justification tests were correctly applied in the cases involving the
two Christians working with same sex couples.
The
EHRC was also to have consulted on whether the concept of reasonable
accommodation, currently only used in a similar way in disability
discrimination law under employer’s duty to make reasonable adjustments, could
be used in cases regarding the manifestation of religious beliefs.[11]
On
11 July 2011, the EHRC announced in a press release that ‘…the Commission will
argue that the way existing human rights and equality law has been interpreted
by judges is insufficient to protect freedom of religion or belief…The
Commission will propose the idea of ‘reasonable accommodation’ that will help
employers and others manage how they allow people to manifest their religion or
belief.’[12]
The
Commission stated: ‘The Commission is concerned that rulings already made by UK
and European courts have created a body of confusing and contradictory case
law. For example, some Christians wanting to display religious symbols in the
workplace have lost their legal claim so are not allowed to wear a cross, while
others have been allowed to after reaching a compromise with their employer.
‘As
a result, it is difficult for employers or service providers to know what they
should be doing to protect people from religion or belief based discrimination.
They may be overly cautious in some cases and so are unnecessarily restricting
people’s rights. It is also difficult or employees who have no choice but to
abide by their employer’s decision.’
The
Commission later elaborated: ‘We want to change the view that there needs to be
an either/or situation…The accommodation of rights is not a zero sum equation
whereby one right cancels out or trumps another. We believe that the law and
practice were considered more widely, then in many situations there would be
scope for diverse rights to be respected. Our view is that careful, sensitive
and balanced treatment and consideration is discouraged by the approach taken
by the courts to date.’[13]
John
Wadham, the Group Director, Legal, at the Commission, stated: ‘Our intervention
in these cases would encourage judges to interpret the law more broadly and
more clearly to the benefit of people who are religious and those who are not.
‘The idea of making reasonable adjustments to
accommodate a person’s needs has served disability discrimination law well for
decades. It seems reasonable that a similar concept could be adopted to allow
someone to manifest their religious beliefs.’[14]
Mrs
Nola Leach, the Chief Executive of CARE, stated: ‘This was a significant step
forward because up until that point the Commission had never demonstrated a genuine
concern to make space to religious liberty rights alongside other rights.
Whenever there had been any kind of tension between religious liberty and other
rights the Commission had always previously seemed to acquiesce with the simple
trumping of religious liberty rights.’[15]
A
cross-party group of MPs called the EHRC’s movement a ‘long overdue
recognition’ of the religious liberty of Christians. The Early Day Motion,
proposed by Gary Streeter MP, stated that the intervention ‘marks an important
development in relation to a better understanding of the role of faith in
public life.’ It continued to welcome ‘the Commission’s advocacy for reasonable
accommodation in the workplace as an acknowledgement of the place of
conscientious objection for those with religious belief.’[16]
However,
Ms Angela Mason, former head of the same sex activist group Stonewall and an
EHRC commissioner, stated that the Commission would break its promise to
support the principle of ‘reasonable adjustment’ for the religious beliefs of staff
in the workplace. On 8 August 2011, the gay news website, Pink News, reported
Ms Mason as stating that ‘The commission has already decided not to put forward
‘reasonable adjustment’ arguments if we do continue with our intervention.’ He
comments were welcomed by Stonewall, but the EHRC did not formally respond.[17]
The
response of Stonewall in the words of Ben Summerskill, its Chief Executive, was
as follows:
‘Stonewall
is deeply disturbed at the EHRC’s statement announcing applications to
intervene in European Court cases of claimed discrimination against Christians
in the workplace. The case features two individuals, Lillian Ladele and Gary
McFarlane, who have refused to provide public services to gay people.
‘The
Commission should be crystal clear that if it seeks to defend the claimed right
of any public servant to turn away any user of a public service, it will face
strong opposition. Gay taxpayers currently contribute £40 billion a year to the
cost of Britain’s public services and no lesbian or gay person should ever be
deprived of access to them.
‘The
EHRC’s announcement, which has apparently been made by officers without
consulting its board, confuses a settled legal situation that is currently
clear. If employees are allowed to discriminate against gay people in the
delivery of publicly-funded services, using the cloak of religion as
justification, then we risk seeing a situation where Muslims may start refusing
to treat alcoholics in hospitals or social workers might decline to assist
single mothers.
‘Recent
research has demonstrated that the majority of religious people in Britain are
proud of our progress towards gay equality. They understand that religious
beliefs do not mean individuals have a right to treat lesbian, gay and bisexual
people unfairly. We regret that the EHRC does not appear to support this
sentiment. We hope it will now offer an unambiguous clarification of its
position.’[18]
The
British Humanist Association (BHA) called the EHRC’s intervention ‘wholly
disproportionate.’ Andrew Copson, the Chief Executive of the BHA, stated that
‘it is one thing to make the case for reasonable accommodation in matters such
as religious holidays, and quite another if the accommodation sought is to
allow the believer to discriminate against others in the provision of a
service.
‘In
the case of Lillian Ladele, her religious objection to providing civil
partnerships went against her obligation as a registrar to provide a service to
which gay and lesbian couples have a fundamental right.’[19]
The
Rev Sharon Ferguson, the Chief Executive of the Lesbian and Gay Christian
Movement (LGCM) commented: ‘As a faith-based organisation we certainly
understand and respect religious conviction and can see the conflicts which can
sometimes occur when the rights of one group appear to trump the rights of
another. But the EHRC must be careful. It is one thing to allow a more generous
approach to people wearing crosses at work for example, or for a Jewish person
to be able to not work on the Sabbath, which can be sorted by efficient
organisation of a work rota. Neither of these restrict the rights and freedoms
of others. But the Commission is going further and potentially lending support
to those who refuse to provide public services to others who are lesbian or
gay. This is contrary to the requirements of the Equality Act 2010 and contrary
to the work with which the EHRC have been tasked. We note their assurances that
this is not their intention but are concerned to see quite how this new
approach can avoid such as result.
‘It
appears to us that the biggest source of confusion in the latest actions of the
EHRC are due to them combining instances of harmless personal religious
expression with situations of blatant discrimination which are then justified
on the grounds of religion. These must be assessed separately as the
implications are clearly dramatically different.’
Rev
Ferguson added: ‘It is obviously tremendously important to us that all people
are free to live according to their beliefs in all areas of their lives, which
includes the workplace, but this can never include oppression or discrimination
against others. The freedom to wear a religious symbol at work and refusal to
perform a public service that is part of your job description are two very
different issues.’[20]
Simon
Barrow, the co-director of the Christian think-tank Ekklesia, stated: ‘The
Equality and Human Rights Commission’s comments and proposed interventions are
hugely muddled. We need justice for all, not privilege for prejudice.’
He
continued: ‘At present, all UK residents are protected by law against
discrimination on grounds of ethnicity, gender, disability, religion or belief,
age, and sexual orientation. This ensures the rights of Christian individuals
alongside, but not ahead of, others. To permit ‘conscientious discrimination,’
which seems to be what EHRC would allow is not reasonable, and would imperil
the rights of both religious and non-religious people.’[21]
In
certain sectors of the media, there were claims that ‘the EHRC risks boosting
the false and divisive claims of anti-Christian sentiment that have been
increasingly levelled by lobby groups in recent years. Although there are four
individual cases being brought to Strasbourg, in aggregate they appear to be
part of a unified agenda. They seem to constitute a sustained attempt to weave
a victim narrative in defiance of the facts and the construction of this
narrative looks like a deliberate agenda to stir up support for a
re-Christianisation of our public spaces as a reaction to feelings of persecution.
Naturally, the commission is under pressure from churches and other religious
lobby groups to become part of this story and allow itself to be woven into
this fiction. But if it wants to keep its remaining credibility, it should
never do so.’[22]
Another
writer claimed that ‘as far as Trevor Phillips, the EHRC chairman, is
concerned, gay people are suddenly secondary in their need for protection. He
and his organisation have made their choice.’[23]
The
EHRC revised its plans on the public consultation. In a consultation launched
on 15 August 2011, the EHRC announced that it was no longer going to argue for
‘reasonable accommodation’ in its intervention. However, it asked its
stakeholders for their views on the subject, with the consultation concluding
on 5 September (when public bodies are to allow at least nine weeks for
consultations). The organisation stated: ‘While we have already decided that
our submission will not make reference to reasonable accommodation, we are now
formally seeking your views on this.’[24]
In
addition, the Commission also announced that in two of the cases, the British
courts made the right decision. As a result, they would not be intervening in
the cases of Lillian Ladele and Gary McFarlane – the two cases that involved
same sex issues within the work environment.
The
Evangelical Alliance, which had welcomed the EHRC’s intervention in the cases
before the European Court, stated that the watchdog had been ‘successfully
intimidated’ by secularists and same sex activists[25]. The Commission said
that it would only support the cases of Nadia Eweida and Shirley Chaplin over
their right to wear crosses, but not those of Lillian Ladele and Gary McFarlane
whose workplace practices clashed with same sex practices.[26]
Mrs
Leach of CARE responded: ‘We are deeply concerned that the EHRC seems to have
given in to lobbying from other equality interests. We are not arguing that
religious rights should trump other rights as some others apparently believe
their rights should trump those of religion. We simply say that space should be
made for all and that no protected characteristic should be able to assert its
rights in a way that attacks and undermines the space for other protected
characteristics. There must be no hierarchy of rights.’
She
concluded: ‘The EHRC took the right step on July 11 for which we warmly affirm
them. They have a difficult job to do because there are tensions between
different protected characteristics but they must not allow themselves to be
intimidated by other equality interests as they seek to discharge their
responsibilities in respect to religious liberty in the UK.’[27]
UK Legislation
Previous domestic
legislation did not give belief as an active alternative to religion. An
example is the Public Order Act 1986 sections 4, 4a, 5 and 6 (3) regarding
religiously aggravated Public Order Act offences, which refer to ‘religious
belief or lack of religious belief.’
It was
followed by section 39 of the Anti-terrorism, Crime and Security Act 2001,
which amended the Crime and Disorder Act 1998 to cover ‘racially and
religiously aggravated offences. In its definition, ‘’religious group’ means a
group of persons defined by reference to religious belief or lack of religious
belief.’
In a
similar vein, the Racial and Religious Hatred Act 2006 addressed ‘hatred
against a group of persons defined by reference to religious belief or lack of
religious belief.’
It is
true to say that that there is legislation that specifically refers to religion
as they have special reference to cemeteries that religious communities are in
control of or religious courts, namely, the Cemeteries Clauses Act 1847 section
59, The Local Authorities’ Cemeteries Order 1977, Ecclesiastical Courts
Jurisdiction Act 1860 section 2, Offences against the Person Act 1861 section
36 and Burial Laws Amendment Act 1888 section 7.
It was the
Equality Employment (Religion or Belief) Regulations 2003 that was the first
piece of legislation that specifically gave ‘belief’ as a credible alternative
to ‘religion.’ It was the means of incorporating the European Directive on
employment into British legislation and so carried its wording into the
Regulations, without any explanation as to what it meant.
This legislation was followed by the Equality Act
2006, which was concerned with goods and services. Small businesses could only
indirectly discriminate with justification if there were financial and
practical considerations, and there was no intention to discriminate against an
individual or potential customer. However, the definition was tightened from
the Employment Regulations in that one division of a religion or belief could
not discriminate against a follower of another division in the areas of
employment, goods, services and facilities.
Section
44 of the 2006 Equality Act (replicated in Section 10 of the 2010 Equality Act)
defines religion or belief as follows:
“(a)
‘religion’ means any religion
(b)
‘belief’ means any religious or philosophical belief
(c)
a reference to religion includes a reference to lack of religion, and
(d)
a reference to belief includes a reference to lack of belief.”
The
Equality Act 2006 indicated that there was a difference between a specifically
religious organisation or charity compared to a commercial company with a
religious ethos. The essential difference being that the commercial
organisation exists to be a business whereas the non-commercial organisations
exist for other reasons although they may engage in business. This proviso is
specifically targeted at religious organisations rather than those driven by a
philosophical belief.
Definition by the
Courts
There
is the definition of religion utilised by Dillon J. in Barralet v Attorney General [1980] 3 All ER 919: ‘…it is natural
that the court should not desire to discriminate between beliefs deeply and
sincerely held, whether they are beliefs in a God or in the excellence of man
or in ethical principles or in Platonism or in some other scheme of philosophy.
But I do not see that warrants extending the meaning of ‘religion’ so as to
embrace all other beliefs and philosophies. Religion as I see it is concerned
with man’s relations with God and ethics are concerned with man’s relations
with man. The two are not the same and are not made the same by sincere enquiry
into the same question, what is God. If reason leads people not to accept
Christianity or any known religion but they do believe in the excellence of
qualities such as truth, beauty and love, or belief in the Platonic concept of
the ideal, their beliefs may be to them the equivalent of a religion but viewed
objectively they are not a religion…It seems to me that two of the essential
attributes of a religion are faith and worship; faith in a God and worship of
that God. This is supported by the definition of religion given in the Oxford English Dictionary, although I
appreciate there are other definitions in other dictionaries and books. The Oxford Dictionary gives us one of the
definitions of religion: ‘A particular system of faith and worship. Recognition
on the part of man of some higher power as having control of his destiny and as
being entitled to obedience, reverence and worship’.’
The
uniqueness of religion over belief can be further illustrated by the definition
of ‘worship’ by Buckley LJ in R v Registrar General ex p Segerdal [1970] 3 All
ER 887 in the Court of Appeal (Civil Division): ‘Worship I take to be something
which must have some at least of the following characteristics, submission to
the object worshipped, veneration of that object, thanksgiving, prayer or
intercession.’
It
has been determined that there is a difference between religious belief and the
manifestations of religious belief, where Nichols LJ in R (Williamson) v Secretary of State for Education and Employment
[2005] UKHL 15 gave the example that Aztec practice was not ‘worthy of respect
in a democratic society’ and that any religion was to be compatible with human
dignity, and with a certain cogency seriousness, cohesion and competence (see
also Campbell and Cosans v UK [1982]
4 EHRR 293, paragraph 36 on 25 February 1982). Any religion that was to be
recognisable needed a clear structure and belief system.
In
an action brought under the Equality Employment (Religion or Belief)
Regulations 2003, Hoffman LJ stated in Begum
v Denbigh High School [2006] UKHL 15, paragraph 50: ‘Article 9 does not
require that one should be allowed to manifest one’s religion at any time and
place of one’s own choosing…people sometimes have to suffer some inconvenience
for their beliefs.’
a. Is the belief sincerely held rather than
being a mere pretence?
b. Is the belief more than merely trivial,
does it possess a degree of seriousness and importance?
c. Is the belief capable of some degree of
coherence of being understood so that it can be communicated?
d. Does the belief constitute a set of
opinions, ideas or principles as opposed to an opinion on a particular issue of
the day?
e. Does the belief involve man’s
relationship with a god (however defined) and worship of that god?
f. Is the belief compatible, or
incompatible, with human dignity?
He
then argues that if the answer is ‘yes’ to (a) – (e) then it is a religion, but
if the answer is ‘yes’ to (a) – (d) then it is a belief.
Cases
in British courts
It takes only a cursory look at the
cases that have come before the courts and tribunals (on websites such as www.religionlaw.co.uk) to show that it is religion that has
been the predominant feature. There are some exceptions (which are noted in the
section on the EHRC), but the overwhelming number have been religious in
nature.
The first case to be brought under the
Employment Equality Regulations concerned a Muslim, who worked for a business
where alcohol was the performance incentive.[29] However, it has been Christian tenets
that have been the greatest cause of law suits, particularly in relation to
same-sex relationships, prayer and dress code.
The situation in the courts is clearly that
Christianity is no longer the common law for this country. This was emphasised
by a decision in the House of Lords in Bowman
v Secular Society Ltd [1917] AC 406, which was endorsed by in the words of
Lord Justice Munby in the case of Eunice and Owen Johns on 28 February 2011:
‘Religion – whatever the particular
believer’s faith – is no doubt something to be encouraged but it is not the
business of government or of the secular courts, though the courts will, of
course, pay every respect and give great weight to the individual’s religious
principles. Article 9 of the European Convention, after all, demands no less.
The starting point of the common law is thus respect for an individual’s
religious principles coupled with an essentially neutral view of religious
beliefs and benevolent tolerance of cultural and religious diversity. A secular
judge must be wary of straying across well-recognised divide between church and
state. It is not for a judge to weigh one religion against another. The court
recognises no religious distinctions and generally speaking passes no judgement
on religious beliefs or on the tenets, doctrines or rules of a particular
section of society. All are entitled to equal respect. And the civil courts are
not concerned to adjudicate on purely religious issues, whether religious
controversies within a religious community or between different religious
communities.
‘However, it is important to recognise
that reliance upon religious belief, however conscientious the belief and
however ancient and respectable the religion, can never of itself immunise the
believer from the reach of the secular law. And invocation of religious belief
does not necessarily provide a defence of what is otherwise a valid claim.
‘Some cultural beliefs and practices are
simply treated by the law as being beyond the pale. Some manifestations of
religious practice will be regulated if contrary to a child’s welfare. One
example is the belief that the infliction of corporal punishment is an integral
part of the teaching and education of children and is efficacious…And some
aspects of mainstream religious belief may even fall foul of public policy. A
recent striking example is Westminster
City Council v C and others [2008] EWCA Civ 198 [2009] Fam 11, where the
Court of Appeal held on grounds of public policy that a ‘marriage’ valid under
both Sharia law and the lex loci celebrationis despite the manifest incapacity
of one of the parties was not entitled to recognition in English law.’
The Lord Justice’s ruling quoted Lord Justice
Laws in the case of Lillian Ladele (the Islington registrar, who was also supported
by Lord Carey). Lord Justice Laws had said, when dismissing the arguments of Ms
Ladele’s legal team:
‘The
promulgation of law for the protection of a position held purely on religious
grounds cannot therefore be justified; it is irrational, as preferring the
subjective over the objective, but it is also divisive, capricious and
arbitrary. We do not live in a society where all the people share uniform
religious beliefs. The precepts of any one religion, any belief system, cannot,
by force of their religious origins, sound any louder in the general law than
the precepts of any other. If they did, those out in the cold would be less
than citizens and our constitution would be on the way to a theocracy, which is
of necessity autocratic. The law of a theocracy is dictated without option to
the people, not made by their judges and governments. The individual conscience
is free to accept such dictated law, but the State, if its people are to be
free, has the burdensome duty of thinking for itself.
‘So it is
that the law must firmly safeguard the right to hold and express religious
beliefs. Equally firmly, it must eschew any protection of such belief’s content
in the name only of its religious credentials. Both principles are necessary
conditions of a free and rational regime.’
After the
quotation from Lord Justice Laws, Lord Justice Munby added, ‘We respectfully
agree with every word of that.’[30]
In April 2010, Lord Carey, a former
Archbishop of Canterbury, submitted a witness statement to the Court of Appeal
in the case of McFarlane v Relate Avon (Gary McFarlane was a Christian
relationship who refused to endorse the practice of same-sex couples) in which
he suggested that cases involving religious rights should only be heard by
judges who had been trained to deal in such cases, for previous judges who had
heard such cases ‘have made clear their lack of knowledge about the Christian
faith.’
He was supported by his former
colleague, Rt. Rev Michael Nazir Ali, the retired Bishop of Rochester.[31]
In response to the intervention by Lord
Carey, Lord Justice Laws in his judgement in the case was that Lord Carey’s
comments were ‘deeply inimical to the public interest.’[32]
Lord Justice Laws commented further: ‘Lord
Carey’s observations are misplaced. The judges have never, so far as I know,
sought to equate the condemnation by some Christians of homosexuality on
religious grounds with homophobia, or to regard that person as “disreputable.”
Nor have they likened Christians to bigots.’[33]
In response,
Lord Carey, commented ‘It is, of course, but a short step from the dismissal of
a sincere Christian from employment to a religious bar to any employment by
Christians. I believe that further judicial decisions are likely to end up at
this point and this is why I believe it is necessary to intervene now.’
The definition by
United Kingdom organisations
Equality and Human Rights
Commission
In
EHRC Research Report 48, ‘’Religion or Belief’: Identifying issues and
priorities,’ it even seems to doubt whether it should bother with religion:
‘What,
if anything, makes religion different from culture on the one side and
political beliefs on the other? Why should the freedoms of religion be
privileged over the claims of either cultural tradition or deeply held
political views? Why, from the other side, should movements inspired by
religion be so often viewed as peculiarly resistant to dialogue or compromise?
Is religion special? And what exactly is the basis for that claim, especially
when considering the political construction of religions, and the cultural
context in which religious beliefs and practices are typically formed?’ (pp. 46
– 47)
If, as has been
suggested, there in fact does exist a hierarchy of protected strands, it may be
asserted that attitudinal discrimination against one party contributes further
to that.
‘As a starting
point, it is useful to distinguish between:
(a)
Socio-economic or ‘material’ discrimination (for example, in employment)
(b) Cultural or
attitudinal discrimination (for example, ignorance, ridicule, distortion,
trivialisation of religious commitment), and
(c) Religious
‘hatred’, which is covered by other legislation.’[34]
The
marginalization of the religion and belief position amounts to trivialisation
of religious commitment, which is (in turn) discriminatory in itself. In
seeking to protect the protected characteristics (in these particular
instances, religion and belief, and sexual orientation) from discrimination,
the EHRC has set up an unfair imbalance. When two rights clash, there are
almost inevitably winners and losers. Unfortunately, evidence seems to suggest
that sexual orientation is almost exclusively favoured by the Commission.
The
religion and belief protected characteristic is essentially without definition
in the Equality Act 2006:
‘Defining religion and belief: Religion is a
word analogous to ‘politics’ or ‘society’. It is not a ‘thing’ with uniform
characteristics, but a collective term for a diverse range of beliefs,
practices and institutions. By means of a range of different dimensions
(including symbols, rituals, practices and forms of community), religions
promise to bring people into relation with a dimension of life which is
portrayed and perceived as more real, more powerful and more meaningful than
everyday experience, and which provides a template for interpreting that
experience and providing orientation within it. Although it is common to define
religion in terms of belief in a supernatural being, such a definition is
narrow, and excludes many forms of religious commitment worldwide.’
There
are several issues with this definition. By paralleling religion with politics,
this definition runs the risk of conflating the two subjects, which has become
the problem in the tribunal cases. There has been the benchmark laid down in
the tribunals are to what is meant by belief in this context. The standards
were established in Grainger Plc. v T
Nicholson (UKEART/0219/09/ZT), which determined that environmentalism was
included as a philosophical belief, whereas political[35]
and 9/11 conspiracy[36]
theories did not comply.
However,
it was decided that sanctity of life extending through to a ‘fervent anti-fox
hunting belief (and also his anti-hare coursing belief’ did constitute a
philosophical belief.[37]
In
a case, it was decided that a poppy being worn from All Souls Day to
Remembrance Day was not a philosophical belief, not because it was not serious
but because there was a question over the nature of the belief for it lacked
sufficient cogency, cohesion and importance.[38] As a result of this tribunal decision,
a spokesperson for the employment team at Morgan Russell solicitors commented:
‘This decision does pull back a little on some of the more headline-grabbing
cases where philosophical belief claims have been allowed to proceed. However
it does not really give any clear guidance to employers as to where the line
should be drawn. I suspect the stream of philosophical belief cases will
continue to flow.’[39]
The
definition was as follows:
1.
The belief must be genuinely held.
2.
It must be a belief and not an opinion or viewpoint based on the present state
of information available.
3.
It must be a belief as to a weighty and substantial aspect of human life and
behaviour.
4.
It must attain a certain level of cogency, seriousness, cohesion and
importance.
5.
It must be worthy of respect in a democratic society, not be incompatible with
human dignity and not conflict with the fundamental rights of others.
Whereas the definition by the EHRC was that:
‘....‘Belief’
is broader in so far as it encompasses commitments which deny a dimension of
existence beyond this world, and which may be actively opposed to religion.’
It
is clear that belief is therefore meant to compromise religion with member
groups, particularly seen in the placement of the British Humanist Association
(BHA) in the same category as Evangelicals.
From
within the remit of religion and belief, the BHA is arguing against rights for
its own protected class. The interests of the humanists and secularists are
evidently not the same as those of religious groups, particularly the
Evangelical Christians. The report offers that ‘At the same time, secularist
organisations like the British Humanist Association argue forcefully against
aspects of the new legislation, particularly the exemptions for religion’
which, rather than suggest that the religious and belief organisations are aware
they should not be excepted, should indicate that the belief faction undermines
the religious, as will be seen by the support of same sex issues by humanist
and secular groups.
Furthermore,
the research admits:
‘The
Commission’s responsibilities for religion or belief raise a number of issues
and concerns. First, and most importantly for this report, research, reflection
and legislation in relation to the mandates for religion or belief are nowhere
near as well developed as for gender, race and disability. (To some extent,
religious equality was previously subsumed under racial equality, especially in
relation to Jews and Sikhs, but not clearly distinguished.) Second, religion or
belief can be seen as different from
the
other grounds of discrimination, in so far that some consider that religious
identity is, in part, a matter of choice. Third, religion and belief are
notoriously hard to define. Fourth, some people regard religion as a major
cause of discriminatory attitudes and behaviour, and worry about the way that
protecting religious equality may mean undermining gains in gender equality and
equality for gay, lesbian and bisexual people and disabled people. There is
potential for the religion or belief ‘strand’ of equality legislation to clash
with other strands.’
This
report honestly cites one of the essential issues as follows:
‘There
was disagreement between some who believed that the maximisation of equality is
a first principle, and others who considered equality to be one principle
alongside others (such as freedom), all of which should be respected, but none
of which could be maximised without undermining others. Some people expressed a
concern that equalities legislation, if pushed too far, would undermine
toleration and freedom, including religious freedom. Some believed that this
had already happened.
‘The
example was given of how, under the Equality Act 2006 it is now illegal to run
hotels or bed and breakfasts for particular groups, including gays, lesbians
and Christians. Some people criticised human rights and equality legislation
for moving us towards a less tolerant society (for example, by making it
illegal to run a hotel catering only for Christians, or only for gays and
lesbians); others felt that this was a price worth paying for a more equal
society. Some delegates were concerned that new legislation may preclude the
traditional religious option of ‘sitting quietly and doing nothing’ when people
do not wish to disrupt a situation, but also do not wish to participate for
reasons of conscience (Ladele v London Borough of Islington 2008).’
Later
in the report, it is suggested that, toward religious people, ‘Cultural
discrimination and legitimate critique or satire may be hard to distinguish.
Such critique may be hurtful to religious people, but need not be
discriminatory.’ It was not recognised that critique is a right of free speech
and distinct from discrimination.
The
report more explicitly states, ‘There was agreement that secular belief,
including legitimate anti-religious sentiment, must also be treated fairly.’ The
ECHR has moved into the arena of reading that philosophical belief as being an
alternative to belief, whereas its essential components are clearly different.
However,
it is clear that Christianity is not considered a protected class or
characteristic due to some assumptions about the faith in history and culture:
‘The
nature and extent of discrimination against the majority religion
(Christianity) has not yet been studied. It is likely to vary with class, skin
colour and type of Christianity. It may also vary geographically, and between
rural and urban areas. Since Christianity is the majority religion in the UK,
and historically intertwined with mainstream culture, followers might be
assumed to suffer little or no discrimination. Indeed, some forms of Anglican
Christianity are bound up with socially elite institutions – the royal family,
public schools, Oxbridge, and so on. However, since only a minority of the
population is now actively Christian, and since secular and sometimes
anti-religious opinion is often strong in the media, some Christians believe
their religion is often treated with private and public disrespect.’
In addition, it seems that, despite the
provisions for people of faith in regards to collisions between the protected
characteristics, unreligious and anti-religious people still struggle to grant
those provisions without grudge:
‘There
was some discussion of the question whether religion has a special status which
means it should be afforded greater protection than ‘culture’, a ‘philosophy’,
‘conscience’ or ‘belief’. The fact that freedom of religion is a separate
article in the UN Declaration of Human Rights and the European Convention on
Human Rights, distinct from freedom of opinion and expression, suggests that it
does. Yet the fact that these articles run it together with freedom of thought
and conscience suggests that it does not. Then again, the fact that religion
has exemptions from some laws (see Section 3.3) suggests that it does have
special privileges. However, the fact that these are often very narrowly
interpreted, and that the law extends an even greater power to discriminate in
employment on the grounds of political belief suggests that it does not. In
other words, the law does not maintain a clear position on this issue.’
It
goes on to express concern at these opt-outs:
‘Moreover,
although very few people are likely to be affected by these exemptions (which
only apply to religious organisations, not individuals), the impact on those
who are affected may be considerable. The working of the exemptions will
therefore need to be monitored. Some participants felt that the distinction
drawn between the duties incumbent upon faith-based organisations which receive
state funding (for example, adoption agencies) and religious groups which do
not (for example, mosques and churches) is helpful and should be more widely
recognised.’
The
research points out many key differences between religion and belief that seem
to prove its polarity with belief. ‘Religion has much in common with other
forms of philosophical belief, but often differs by virtue of:
•
Being social and binding followers together in a community.
•
Involving ritual practices.
•
Appealing to a historical tradition.
•
Being focused around sacred symbols.
•
Claiming to put followers in relationship with realities which transcend
everyday
experience.’
In
July 2010, the EHRC issued a Service Providers Guide to the Equality Act, ‘What
equality law means for your voluntary and community sector organisation
(including charities and religion or belief organisations).’ [40]
In
answer to the important question “How do I know if I can restrict my benefits
to people with a particular protected characteristic?” the EHRC provides the
following response:
‘This
is a difficult legal question which is beyond the scope of this guide to
provide a definitive answer to. If your charitable instrument allows you or
even requires you to restrict your benefits to people with a particular
protected characteristic:
·
You
should read the Code of Practice, which tells you more about what the law says
and how it might be applied.
·
You
and your trustees need to decide if the restriction meets either of the other
two tests. If it does not, then you should stop applying the restriction.
·
You
can obtain advice from the Charity Commission if you are in England and Wales
or the Scottish Charity Regulator if you are in Scotland.
·
If
necessary, you should obtain independent legal advice.
·
If
anyone challenges your decision to go on restricting your benefits, then the
courts will decide whether the tests are met.’
The
EHRC Service Providers Guide to the Equality Act has the vague response for
anyone who wants advice, which is both unacceptable and unhelpful. The EHRC has the remit to provide guidance on
how to foster relationships and prevent disadvantage to those with protected
characteristics, but the guidance renders no clear boundary for those seeking
assistance and refers them to other bodies that would assist them, implying
that they did not have the expertise.
To
further prove the lack of capacity from within the EHRC, in the section for
referrals for advice on issues, the EHRC gives contact details and information
for: Age UK, Centre for Accessible Environments, Gender Identity Research and
Education Society, The Gender Trust, Press for Change, and Stonewall. These
organisations are limited to responding to and specialising in the ageing,
disabled, and LGBT, with the vast majority offering services for LGBT people.
There is the obvious exception as to where organisations and agencies should
refer with regard to religion and belief.
In
February 2012, the chairman of the EHRC, Trevor Phillips, stated that religious
rules should end ‘at the door of the temple’ and give way to ‘public law’ laid
down by Parliament. [41]In doing so, he indicated that
Christians had to buckle down in compliance to every piece of legislation; but
he forgot the equation that religious groups, and Christians in particular, are
more likely to vote for these legislators than any other group.
ACAS
The
Advisory, Conciliation and Arbitration Service (ACAS) is a Crown
non-Departmental public body.
In
November 2005, it issued the ‘Religion or Belief and the Workplace – A guide
for employers and employees.’ It stated
on page 4: ‘In most applications to a tribunal it will be clear what is or is
not a religion or a similar belief. It will be for the tribunals and higher
courts to decide where the issue is disputed. They may consider a number of
factors when deciding what is a religion or similar belief. It is likely that
they will consider things such as collective worship, a clear belief system, a
profound belief affecting the way of life or view of the world.’
There
was a later addition to their website of a ‘Religion and belief toolkit’ [my emphasis], which emphasised the growing
linkage of the two terms as being viable alternatives.
Conclusion
There is a distinction between religion and
belief as the former has, at its core, the tenets regarding a transient reality
or being; whereas the latter is noticeable be the omission of such a doctrine.
It has been noticeable
in the passing of the legislation and in the subsequent guidance from both the
courts and tribunals, and the Government sponsored bodies that the definition
of religion and belief is both muddled and confusing. This approach has arisen
from a lack of serious understanding of the issues and in the intrinsic natures
of the two subjects.
It would be
advantageous if the United Kingdom separated the two entities, both within the
legislation and in the bodies that are there to support diversity issues (such
as the Equalities and Human Rights Commission).
This clarity
would also ensure that this country would comply with the European Directive on
employment with obvious meanings given to the terms, without having to wait for
the courts and tribunals to unwrap the explanations of religion and belief in
on-going processes.
Above
everything else, it will send out the message that religion and belief are
distinct in nature and are not alternatives and should, therefore, be treated
differently in our courts and our Parliament.
[1]
Pew Forum survey 2007 of over
37,000 Americans, quoted in ‘Why belief in God is innate,’ by Michael Shermer,
The Wall Street Journal, 10 April 2010 (http://online.wsj.com/article/SB10001424052702304198004575172233981688208.html)
[2] Scott M Thomas The Global Resurgence of Religion and the Transformation of
International Relations: The Struggle for the Soul of the Twenty-First Century
(Pelgrave MacMillan, New York and
Basingstoke, 2005), p. 21
[3] ‘Questioning ‘the global resurgence of
religion’,’ Timothy Fitzgerald, ekklesia.co.uk, 9 June 2011
[4] ‘Critical religion and the
‘religion-secular’ binary,’ Timothy Fitzgerald, ekklesia.co.uk, 13 September
2011
[5] Scott M Thomas in Religion in International Relations: The Return from Exile, F.
Petto and P Hatzopolous (eds.)(Palgrave MacMillan, New York and Basingstoke,
2003), p. 25
[6]
Neil Addison, Religious Discrimination and Hatred Law (Routledge – Cavendish,
Abingdon, 2007)
[7]
http://www2.ohchr.org/english/law/ccpr.htm
[8] Implementation of European
anti-discrimination law in the Member States: a comparative approach, www.era-comm.eu/oldoku/Adiskri/01_Overview/2011_04%20Chopin.EN.pdf, pp. 2 - 3
[9]
‘Religion takes a back seat to
rights in court, says theologian,’ www.telegraph.co.uk, 25 January 2012
[10] ‘Christians take prejudice row to
Strasbourg,’ The Daily Telegraph, 5
June 2011; ‘Christian practice to have its day in court,’ Sydney Morning Herald, 6 June 2011
[11] ‘EHRC launches consultation on
submissions in religious discrimination cases,’ Personnel Today, 16 August 2011
[12] www.equalityhumanrights.com/news/2011/july/commission-proposes-reasonable-accommodation-for-religion-or-belief-is-needed/; see also ‘Equality body: Courts have
failed Christians,’ The Christian Institute, 12 July 2011; ‘Equality commission
backs religious claims,’ bbc.co.uk, 12 July 2011; ‘At last, equality police
decide Christians DO have right to follow beliefs,’ www.dailymail.co.uk, 12 July 2011
[13] E-mail from EHRC to stakeholders on 12
July 2011
[14] ‘Commission proposes ‘reasonable
accommodation’ for religion or belief is needed,’ www.equalityhumanrights.com, 11 July 2011
[15] ‘CARE speaks out as Equalities
Commission say they will no longer promote ‘Reasonable Accommodation’ for
religion in European Court intervention,’ CARE press release, 19 August 2011
[17] ‘Equality Commission’s new commitment
to religious freedom in doubt,’ www.ionainstitute.ie/index.php?id+1607; ‘EHRC commissioner Angela Mason: ‘We
won’t seek ‘reasonable adjustments’ for anti-gay workers’,’ pinknews.co.uk, 4
August 2011
[18] ‘Stonewall response to EHRC statement
on religious ‘discrimination’ cases,’ www.stonewall.org.uk/media/current_releases/5751.asp, 19 July 2011; see also ‘Equality
commission wants more ‘compromise’ on gay rights vs religious beliefs,’
pinknews.co.uk, 12 July 2011
[19] ‘Equality Commission’s intervention in
Christian legal cases ‘wholly disproportionate’,’ humanism.org.uk, 12 July 2011
[20] ‘Equality body urged not to backtrack
on ‘blatant discrimination’,’ www.ekklesian.co.uk, 18 July 2011
[21] ‘Equality body urged not to backtrack
on ‘blatant discrimination’,’ www.ekklesian.co.uk, 18 July 2011
[22] ‘The EHRC’s stance on religious rights
undermines its credibility,’ Andrew Copson, guardian.co.uk, 13 July 2011
[23] ‘The Equality and Human Rights
Commission’s choice is beyond belief,’ Patrick Strudwick, guardian.co.uk, 13
July 2011
[24]
www.equalityhumanrights.com/legal-and-policy/human-rights-legal-powers/legal-intervention-on-religion-or-belief-rights-seeking-your-views/
[25] Examples included:
www.pinknews.co.uk/2011/07/13/equality-commission-explains-compromise-plan-
for-gay-and-religious-rights; www.pinknews.co.uk/2011/07/21/tuc-attacks-equality-commissions-opt-out-proposals-for-anti-gay-staff/;
www.secularism.org.uk/equality-commission-determined-t.html
[26] ‘Equality watchdog drops plan to
protect religious rights,’ www.telegraph.co.uk, 19 August 2011; ‘Equality quango’s
two-tier law for Christians that allows crosses at work but upholds gay
rights,’ www.dailymail.co.uk, 19 August 2011
[27] ‘CARE speaks out as Equalities
Commission say they will no longer promote ‘Reasonable Accommodation’ for
religion in European Court intervention,’ CARE press release, 19 August 2011
[29]
‘Muslim salesman ‘hurt’ by wine
prizes,’ The Daily Telegraph, 24
November 2005
[30] ‘The law of England is not Christian,’
Andrew Brown, Comment is Free Belief, www.guardian.co.uk, 28 February 2011
[31] ‘The legal threat to our spiritual
tradition,’ The Daily Telegraph, 30
April 2010
[32] McFarlane
v Relate Avon, judgement of Lord Justice Laws, 29 April 2010, paragraph 18
[33] Quoted in ‘Religious freedom in the
United Kingdom,’ a talk given by Neil Addison (National Director, Thomas More
Legal Centre) for the Iona Institute on 24 September 2010; McFarlane v Relate Avon, judgement of Lord Justice Laws, 29 April
2010, paragraph 17
[35] G
Kelly and others v Unison
(ET/2203854/08, etc.); R Baggs v Dr F D A
Fudge (ET/140114/05)
[36] A
Farrell v South Yorkshire Police Authority (ET/2803805/10)
[41]
‘Christians must choose between
religion and obeying law, says equality chief Trevor Phillips,’ www.telegraph.co.uk, 17 February 2012
Comments