Evolutions in Religious Freedom in the United Kingdom

Philip Milligan

“Evolutions in Religious Freedom in the United Kingdom
following the Equality Act 2006”
[1]

 

Abstract
The study considers the provisions of the Equality Act passed by the United Kingdom Parliament in 2006 and emblematic examples of the case law since the Act’s passing. In his consideration of how religious freedom is interpreted in relation to freedom from discrimination, the author concludes that anti-discrimination legislation in general, and the Equality Act 2006 in particular, is unsuited to the guaranteeing of freedom of religion understood as a positive value for the common good in society.

 

Introduction: The Act in context

The Equality Act 2006 reorganises previous anti-discrimination legislation under the vigilance of one single commission – The Commission for Equality and Human Rights – with oversee in the various fields where discrimination was previously deemed unlawful under United Kingdom law. In addition it establishes new fields where discrimination is to be considered unlawful. The goal of this short paper is to analyse the impact of the 2006 Act on freedom of religion. We will see that the Act considers religious freedom as a right that is to be protected, and we will analyse how religious freedom is understood in the Act. We will also consider how the Act, along with the jurisprudence it has produced, positions the ‘right’ to non-discrimination on grounds of religion in relation to other rights to non-discrimination. The questions asked as this paper begins are whether religious freedom is better or worse protected than prior to the 2006 Act and, additionally, whether anti-discrimination legislation is an effective instrument for this goal.

Specific anti-discrimination legislation and oversee powers to enforce individual rights in this field have been in place in the United Kingdom since the 1970’s. In structural terms, the 2006 does not replace the previous acts, but creates one single commission where previously there were distinct commissions for distinct types of discrimination: under the Sex Discrimination Act 1975, the Equal Pay Act 1970, the Race Relations Act 1976, and the Disability Discrimination Act 1995. These acts established a series of measures protecting against sex, race and disability discrimination in fields such as employment, accommodation and education, and set up, in each case, a commission to advise government and report on discrimination, with power to take to court either public authorities or private persons not in compliance with the legislation.

Among the rights to non-discrimination covered by the Equality Act 2006, two are addressed for the first time: “religion or belief”[2] and “sexual orientation”. In addition, the Act imposes “duties relating to sex discrimination on persons performing public functions”[3]. This last objective creates new consequences in United Kingdom law, because of the broad definition the statute gives to “persons performing public functions”.

 

1. Definitions and General Powers

In section 3 the act sets out the general duty of the Commission:

“The Commission shall exercise its functions under this Part with a view to

encouraging and supporting the development of a society in which—

(a) people’s ability to achieve their potential is not limited by prejudice or discrimination,

(b) there is respect for and protection of each individual’s human rights,

(c) there is respect for the dignity and worth of each individual,

(d) each individual has an equal opportunity to participate in society, and

(e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.”

 

Sections 8 and 9 set out the Commission’s specific duties on equality and diversity:

“s. 8

(1) The Commission shall, by exercising the powers conferred by this Part—

(a) promote understanding of the importance of equality and diversity,

(b) encourage good practice in relation to equality and diversity,

(c) promote equality of opportunity,

(d) promote awareness and understanding of rights under the equality enactments,

(e) enforce the equality enactments,

(f) work towards the elimination of unlawful discrimination, and

(g) work towards the elimination of unlawful harassment.

(2) In subsection (1)—

“diversity” means the fact that individuals are different,

“equality” means equality between individuals,

s. 9

(1) The Commission shall, by exercising the powers conferred by this Part—

(a) promote understanding of the importance of human rights,

(b) encourage good practice in relation to human rights,

(c) promote awareness, understanding and protection of human rights, and

(d) encourage public authorities to comply with section 6 of the Human Rights Act 1998 (c. 42) (compliance with Convention rights).

(2) In this Part “human rights” means—

(a) the Convention rights within the meaning given by section 1 of the Human Rights Act 1998, and

(b) other human rights.”

 

Section 10 refers to “groups” concerning whose rights to non-discrimination the Commission will undertake not only vigilance but active promotion. It should promote understanding and good practice in relations within and concerning these groups. It should “work towards” the elimination of prejudice, hostility or hatred concerning these groups, and furthermore it should “work towards enabling members of groups to participate in society” (s. 10(1)).

Section 10 (2) defines ‘group’ as a:

 

“group or class of persons who share a common attribute in respect of any of the following matters—

(a) age,

(b) disability,

(c) gender,

(d) proposed, commenced or completed reassignment of gender (within the meaning given by section 82(1) of the Sex Discrimination Act 1975(c. 65)),

(e) race,

(f) religion or belief, and

(g) sexual orientation.”

 

Under its general powers (sections 13-19), the Commission promotes equality and non-discrimination, leads general inquiries into discrimination, produces codes of practice, and recommends legislative action to government. Under its enforcement powers (sections 20-27) it can lead inquiries into specific breaches of the law, require people to appear or provide evidence, publish notices requiring specific people to comply with the law and take people to court for non-compliance with such a notice. The Commission is not a tribunal, but it can require people to respond to allegations of discrimination, and in the case of non-response it can take people to court. The Commission also has legal title to intervene as a third party in cases of unlawful discrimination brought by individuals under this or other legislation (although not to receive damages). This concerns cases brought against the public administration (judicial review) or against individuals. The commission can also provide legal assistance ranging from advice to legal representation of such individuals (sections 28-30). This can include covering the legal costs of such parties.

The overall structure of the legislation and its wording do seem to intend that recognising difference of any kind on the basis of religious identity or convictions be understood as discrimination, but that this is discrimination that can be ‘not unlawful’. Said more bluntly: discrimination is not good, but in some cases it is to be allowed. Having said this, the exceptions to these discrimination previsions also apply to the actions of the judiciary, the armed forces, and the security services – all for reasons of public interest. While it could be argued that the higher public interest argument is the reason why religious institutions are allowed to discriminate on the grounds of religion, we shall see that the overall structure of the act does not seem to allow this, and that this has not been successfully argues in court.

 

2. Discrimination on Grounds of Religion or Belief

Part Two of the Act deals with discrimination on grounds of religion or belief. Section 44 defines religion and belief in very broad terms: any religion, any religious philosophy or belief; any lack of religion or any lack of belief. Section 45 (1) describes discrimination as person “A” treating another person (person “B”) less favourably than he would treat others, on the grounds of “B’s” religion or beliefs. The onus is placed on the person acting (person A) because discrimination includes not only person “B’s” religion or beliefs but those that person “A” – the offending or discriminating person – think he holds (s. 45(2)).

Also considered as discrimination is the applying by “A” to “B” of a practice which, while being equally applied to others who do not share “B’s” beliefs, puts either “B” or people of “B’s” beliefs at a disadvantage compared to others, where there is no material difference in relevant circumstances and where the practice cannot be reasonably justified by “A” for reasons other than “B’s” religion. Again, the onus is upon “A” to justify other reasons for the action or practice under scrutiny. However, one could infer from this prevision that this reasonable justification does not constitute an allowed exception in discrimination, but rather the absence of discrimination: the action or practice is not based on a lawful discrimination of a matter overseen by the Act, but on a choice which is not discriminatory.

The act then sets out in express terms what constitutes prohibited discrimination in the fields of goods, facilities and services (s. 46), premises (s. 47), educational establishments (s. 49) and educational authorities (s. 51). Section 46 (1) states that it is… “unlawful for a person (“A”) concerned with the provision to the public or a section of the public of goods, facilities or services to discriminate against a person (“B”) who seeks to obtain or use those goods, facilities or services…” by refusing to provide goods, facilities or services or to provide them according to the same quality, manner or terms as are available to others, because of the religion or beliefs of the receiving person. The same is true of the providing of premises for use (s.47), and for the admission as a school pupil or for treatment between pupils within a school (s. 49).

What this provision also does, however, is to render unlawful a refusal to provide goods, facilities or services based on the religion or beliefs of the person providing the service (person “A”). The criterion is the provision to the ‘public’ or a ‘part of the public’, not the status of the person or institution providing the service. This includes access to a place where the public may enter, accommodation in a hotel or boarding house, banking facilities, entertainment facilities, transport facilities, or the services of a profession or trade (s. 46(2)).

 

3. Exceptions to the Non-discrimination rule

The Act then outlines a series of exceptions to this general rule, benefitting educational establishments of a voluntary or religious character, whether they be under state supervision (often the case in Scotland and Northern Ireland) or not (often the case in England and Wales). It allows curriculum which is religion-specific and does not count as non-discrimination the exclusion on religious grounds from an act of worship or religious observance, be it part of the curriculum or not (s. 50 (2)). Again, the Act’s terms are couched according to the discrimination or non-discrimination based upon the religion or beliefs of the ‘receiving’ person (B) as being different from those of person A, and not in terms of the person providing the service (A) having a positive right to express his own beliefs or religion or act accordingly. It should be noted that section 50(3) gives the government minister power to repeal or modify the exceptions listed by Executive Order. In the same way, new exceptions can be added.

Because an Executive Order is an administrative instrument rather than a legislative act, the margin given to religiously-motivated decisions currently allowed within the 2006 Act does not benefit from the same legal guarantees that would apply to a prevision which only a legislative act could modify. This only tends to reinforce the perception given by the Act as a whole that these exceptions are not rights, but rather allowances, under the discretionary power of the administration. Similarly, under this section the government has the power to issue criteria for the interpretation of which acts of discrimination “A” can “reasonably justify by reference to matters other than “B’s” religion or belief” (s. 45 (3)(d)). While this does mean that the judiciary need not be left to fix the criteria for reasonably justifying whether a non-religious motivation exists for an allegedly unlawful discrimination, it also means that it is government rather than Parliament who can provide criteria – again reducing what might have been construed as a statutory right to the status of a discretionary allowance. It also means that the Commission, which must report to Parliament, could effectively propose modifications to the safeguards of religious freedom under the Act without referring to Parliament, and instead referring simply to the competent government minister.

Section 52 makes it unlawful for any public authority to discriminate for reasons of religion or belief and then sets out a long series of exceptions to this. These include, logically, the provision of services in relation to the religion-based educational establishments. More surprisingly perhaps the list includes Parliament and the courts, the secret services and the armed forces, and the legislative activities devolved to government ministers. The list also includes the procedures for deciding on requests for immigration, where the “public good” is deemed superior: someone’s religion or philosophical beliefs can be a legitimate reason for denying them entry to the United Kingdom. This broad discretionary power, while consistent with public policy arguments in most countries, is nonetheless extremely broad – the Act does not set limits on how government is to assess when religious belief becomes contrary to the public good.

We note that Section 55 makes it unlawful for one person to instruct, induce (directly or indirectly) or cause another person to unlawfully discriminate. This would have an impact for example in the advice that a Church’s leadership – a Bishop for example – could provide to a Church organisation or to Church members.

 

4. Religious Organisations

Sections 57 and 58 give broad terms guaranteeing the rights of religious organisations to function according to their own religious principles, even if this supposes discrimination on the basis of religious belief. We note that it does not give them the right to discriminate for reasons of sexual orientation as such, but only when this entails a principle of religious belief.

Section 57 reads:

“(1) This section applies to an organisation the purpose of which is—

(a) to practice a religion or belief,

(b) to advance a religion or belief,

(c) to teach the practice or principles of a religion or belief,

(d) to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief, or

(e) to improve relations, or maintain good relations, between persons of

different religions or beliefs.”

The sections that follow (ss. 58-61) apply to charities, faith schools and the training or welfare of members of a religious institution. Together these provisions allow a religious organisation to apply rules or restrictions – which would otherwise be considered discriminatory – concerning membership, participation, the prevision of facilities, goods and services and the use of its premises, and similarly allows a religious minister or other Church official to restrict participation or the prevision of facilities, goods and services in the carrying out of religious ministry. This means, for example, that a religious minster while acting for the public administration in a wedding ceremony within his church, could legitimately refuse to marry people on the basis of religious principles, even if the legal definition of marriage were to change (allowing, for example, same-sex unions currently recognised as ‘civil unions’ to be redefined as ‘marriage’).

The proviso to this is that the restrictions be due to the finalities of the religious organisation or in order to avoid giving offence to the religious convictions of the members of that organisation (s. 57 (5)). Similarly, a charity with a religious finality can direct the benefits it provides to people of a particular religion or belief (s. 58) and require that its members ascribe to a religion or belief (s. 60), and a faith school can place restrictions on who it serves and on the use of its premises in accordance with the schools finalities or to avoid offence to the people connected to the institution who hold the religious convictions upon which the institution is founded (s. 59). What the school cannot do is discriminate between students it has admitted in the educational facilities or services it provides them (s. 59(4)).

 

5. Discrimination on Grounds of Sexual Orientation

Part 3 of the Act refers to discrimination on grounds of sexual orientation. In broad terms, any such discrimination is unlawful (s. 83) – extending various existing legal prohibitions of sexual discrimination to include discrimination on the grounds of sexual orientation. We have seen that religious organisations have the right to make choices concerning their own membership and activities which are coherent with the religious convictions – or more precisely – the stated finalities of these institutions. However, there is no provision for personal religious conviction allowing discrimination on the grounds of sexual orientation. Similarly, there is no provision for a religious institution to discriminate on the basis of sexual orientation when the activities in question can be classified as ‘public’ rather than as internal to the organisation.

The Act considers as ‘public’ activities which provide facilities, goods and services to the public, independently of the nature of the provider, be it a religious organisation, an individual, a private commercial body or a pubic authority. We should note here that the protection of a religious organisation’s activities on the basis of religious conviction is only considered worthy of any guarantee when the activity is addressed to its own members or can in some other way be considered an ‘internal’ activity: one might say when this remains in the private domain. These same religious convictions are not considered to have any relevance concerning ‘public’ activities. Underlying this organisation of rights and duties it is not difficult to identify a vision of religious conviction and organised religion as being essentially private values, without relevance in the shaping of public life.

We have already noted that ‘public’ activities are defined in terms of their availability to the general public and not in terms of the provider (s.46). At the time of enacting this legislation it became clear that the exceptions accorded to religious institutions, despite promises made previously, would not cover the ‘public’ activities of religious institutions. In particular, this has meant the closing down or restriction of services offered by Catholic adoption agencies across the United Kingdom, because such agencies could not legally refuse to consider same-sex couples as candidates for adoption. Any Bishop or Church administrator instructing an agency to remain open and yet refuse consideration of same-sex couples would have been in breach of the Act, inducing an unlawful discrimination[4].

 

6. Case Law Since the Equality Act

Since the Act has come into effect, several court cases have also underlined the lack of recognition given to individuals or non-religious organisations in terms of religious convictions, when these individuals or organisations were deemed to be providing services to the public. These court cases underline that there is no prevision of conscientious objection or referral, which can be invoked by individuals providing goods, facilities or services to the public, and that a religious motivation for discrimination in a service to the public is not considered relevant under the Act.

 

McFarlane v Relate Avon Ltd [2010] EWCA Civ 880; [2010] IRLR 872; 29 BHRC 249 [5]

This case concerned a public service provided by a public authority. In November 2009 the Employment Appeals Tribunal held that a qualified therapist working as a ‘relationship counsellor’ for a local council had been legitimately dismissed by his public authority employer when he refused, because of his Christian convictions, to provide sex-therapy for a same-sex couple. In refusing him right to appeal, in April 2010, the Court of Appeal held that Mr. McFarlane had no right to conscientious objection, and his acceptance to refer such cases to other colleagues was considered immaterial. The therapist could not be deemed to legitimately serve the public while acting according to his Christian convictions because these convictions could not justify his discriminatory attitude. His own freedom of religion was not deemed to have been infringed, because exercising this profession was a free choice.

 

Johns v Derby City Council [2011] EWHC 375 (Admin)

This case concerned a service provided by private individuals under the supervision of a public authority. In March 2011, a Christian-Pentecostal couple with a long experience as foster-parents were removed from the list of suitable foster-parents because in the event of taking on new foster children they would not promise to present a same-sex lifestyle as validly alternative to a heterosexual (and married) lifestyle. Eunice and Owen Johns had taken Derby City Council to court. In dismissing the case, Justices Monby and Beatson said this in their judgement:

“… there is a tension between the equality provisions concerning religious discrimination and those concerning sexual orientation. Yet, as regards fostering, the equality provisions concerning sexual orientation should take precedence.”

And later:

“A local authority can require positive attitudes to be demonstrated towards same-sexity”.

The ruling did not in fact examine the merits of the case because the city council’s decision to remove the Johns from the list of suitable foster parents was not a definitive one, and therefore a case for judicial review could not be legitimately brought before the High Court. That notwithstanding, the ruling of Lord Justice Munby is particularly useful because in it he attempts to summarise previous case law. The proceedings were particularly contentious [6] because of the active role of the Equality and Human Rights Commission as a party to the case acting against the Johns, their drawing almost exclusively on documents produced by lesbian and gay-rights organisations for the formulating of expert opinion, and the suggestion in the Commission’s written submission, as cited by Lord Justice Munby, that:

“as a generality « there is often scope for change where a person is willing to perform his or her professional duties in a way required by applicable standards notwithstanding personal belief » and that « attitudes too might be changed, moderated or modified through training, counselling and support »[7].

 

R (E) v Governing Body of JFS and another (United Synagogue and others intervening) [2009] UKSC 15, [2010] 2 AC 728

This case concerned a private educational institution providing services for a specific, religiously defined, section of the public. In June 2009, a well-known Jewish secondary school – the Jewish Free School – was found by the Court of Appeal to have infringed discrimination laws because it refused admission to a child whose father was ethnically Jewish and whose mother was not, but had converted to Judaism. The school, which is regularly oversubscribed,  said it had refused admission to the child on a purely religious criteria, because the mother had converted to a ‘progressive synagogue’ not recognised by Orthodox Judaism and therefore she was not recognised as Jewish by the Chief Rabbi. This in turn meant that her children were not recognised by him as being Jewish. The Court of Appeal maintained that because English law defines Jews as an ethnic group, the non-admission of the child could only be construed as having been done on ethnic grounds, and was, therefore, a case of race discrimination. In its September 2010 ruling on the appeal, the United Kingdom Supreme Court ruled that this was a case of racial discrimination because the admissions policy favoured the children of ethnically Jewish mothers.[8]

We should note the unwillingness of the court to take into account the possibility that a religion could have ethnicity as an element in its identity – despite the historic reality of Jewish ethnicity as an element in Jewish religious identity and the Appeal Court’s own affirmation that Jews are an ethnic group under English law. Some observers have noted that in this particular case the judiciary have taken on the role of establishing who is, and who is not, Jewish.

 

Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales,
[2011] CA/2010/0007

This case concerned a private institution providing a general service to the public, but funded by members of a given religious group. Here, the Roman Catholic Diocese of Leeds lost its appeal against refusal of permission to modify the articles of association of Catholic Care, a diocesan voluntary adoption agency. As a consequence of the 2006 Act, modification to Catholic Care’s articles of association was necessary to allow the agency to exclude same-sex couples from consideration as candidates for adoption, and therefore to avoid contradiction with Catholic teaching on marriage and on the rights of children. Much of the argument in appeal concerned the Tribunal’s finding that the agency had not proved that the non-exclusion of same-sex couples would lead to its closure because Catholics would no longer give financial support to the agency. This was in part due to all parties having already concurred at the previous hearing that the Equality Act 2006 did not allow religious conviction as a grounds for discrimination against same-sex couples in the provision of services to the public. The adoption agency was unsuccessful in its argument on appeal that religious conviction here provided the sufficiently ‘weighty reason’ required under European Court of Human Rights jurisprudence for overcoming the freedom from discrimination guaranteed by Art. 14 of the ECHR.

“Religious belief is of course protected by ECHR and by the Equality Act 2010 in certain private circumstances; however, it was agreed between the parties that the Commission and the Tribunal were bound by case law to the effect that religious belief cannot provide a lawful justification for discrimination on grounds of sexual orientation in the delivery of a public-facing service such as the operation of a voluntary adoption agency”[9].

In commenting an objection brought by the Bishop of Leeds, appearing as a witness for the agency during the appeal, the judge illustrated the current tendency in United Kingdom jurisprudence to limit guarantees of religious freedom to the private sphere: an interpretation which goes well beyond the interpretation of the Equality Act and encompasses the right to religious freedom under Article 9 of the ECHR.

“The Bishop in his evidence to the Tribunal advanced the view that the Charity’s views on same sex adoption should be equated in law with its views on civil partnerships. The Church is not required by equality law to bless civil partnerships, he argued, and so it should not have to provide adoption services to same sex couples. As noted above, religious conviction in the sphere of personal belief is protected in both domestic and European equality law, so that acts of devotion, worship, and prayer (including ceremonies) are exempt from equality obligations. However, with the greatest of respect to the Bishop, his argument overlooked the essential distinction between private acts of worship such as blessings and the provision of a public service such as an adoption agency. In other words, in advancing this argument, the Bishop did not take account of the law by which the Tribunal is bound.”[10]

 

Article 9 (1) of the ECHR says that :

“Everyone has the right to 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 public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Current UK jurisprudence is not alone in presenting a restrictive interpretation of religious freedom in its construction of Article 9(1) and United Kingdom law’s compliance with this article, however a study of ECHR jurisprudence itself is beyond the scope of the present paper. We can note, however, that the judge in this case, as cited above, does limit religious freedom to “personal belief”, whereas the ECHR allows for belief expressed as a community, and the judge limits its manifestation to private acts of  “devotion, worship and prayer”, while Article 9 mentions “practice and observance”, in private and in public.

In his testimony, the Bishop of Leeds also explained catholic teaching in the fields of marriage and family, and their being in contradiction with adoption by same-sex couples. However, the judgement also refers to :

“a letter which had been sent unsolicited to the Commission by the Roman Catholic Caucus of the Lesbian and Gay Christian Movement and which stated that other Catholic adoption agencies which had been required to change their way of operating in order to comply with equality legislation had continued to attract support from “Catholics (including Bishops), showing that intransigent opposition to adoption by same sex couples is not an essential element to a Catholic ethos”. The Tribunal does not of course have to decide whether Catholics are required by their faith to support the Charity’s stance or not. The Tribunal does, however, conclude from the evidence before it that there is a wide range of opinion amongst donating Catholics…”[11]

While the tribunal carefully states its intention to consider only whether faithfulness to official Catholic teaching would have a negative impact on the adoption agency’s ability to raise funds – an assertion that it rejects – , it would have been disingenuous of the Tribunal to give weight to unverified evidence from a group not party to the case: indeed this group was not among the supplementary expert witnesses called by the appeals tribunal. This does beg the question of why the judgement mentions this letter at all. Unsurprisingly, the court notes that, according to this evidence, there are Catholics who do not obey the teaching of the Catholic Church. However, the judgement does seem to indicate an understanding of religious belief according to a solely personal criteria, whereas the Bishop of Leeds had set out the communal beliefs of the Roman Catholic Church, and Art. 9 of the ECHR explicitly refers to religious freedom ‘in community’.

 

Hall and Preddy v. Bull, Case No 9BS02095, Bristol. County Court (UK), January 18, 2011

This case concerned private individuals providing a commercial service to the public. The case was decided on January 18th 2011, a judge granting damages of £3,600 to a same-sex couple who had contracted a civil union, but who were refused a double-room in a family guesthouse where the owners – Mr and Mrs Bull, 71 years old and 66 years old respectively, – had a policy of giving double rooms only to married couples. The owners also refuse double rooms to unmarried heterosexual couples, and have done so consistently since the opening of their guesthouse in 1986. Judge Andrew Rutherford gave leave to appeal because he recognised that the decision:

“does affect the human rights of the defendants to manifest their religion and forces them to act in a manner contrary to their deeply and genuinely held beliefs.”

but maintained that, under the terms of the Equality Act 2006 and the Equality Act (Sexual Orientation) Regulations, their actions were unlawful.    

One similar case[12], pending hearing, dates from January 2011. A Mr and Mrs Wilkinson from Berkshire received abusive calls and emails after denying a double-room to a same-sex couple. Mr and Mrs Wilkinson provided rented bed-and-breakfast accommodation in part of their own home, but because the rooms were advertised as available for rent, their location within the couple’s home may well not be considered as relevant in terms of giving due respect to their own religious convictions.

 

Islington London Borough Council v Ladele (Liberty intervening) [2009] EWCA Civ 1357, [2010] 1 WLR 955

The difficulties raised by the absence of any possibility of conscientious objection for religious reasons was highlighted in a March 2010 case, where the United Kingdom Supreme Court refused permission to appeal in the case of a borough registrar – whose job is to register births, deaths and marriages – who had asked permission from her employers not to take part in the registration of civil partnerships, because of her religious convictions. (We should note that current UK law recognises religious marriage, civil marriage of heterosexual couples, and civil partnerships of same-sex couples). Mrs Ladele had been disciplined by her employers and appealed on grounds of religious discrimination. It is pertinent to cite Justice Sir Patrick Elias:

« The proper hypothetical or statutory comparator here is another registrar who refused to conduct civil partnership work because of antipathy to the concept of same sex relationships but which antipathy was not connected or based upon his or her religious belief. If the Tribunal were to be satisfied that such a person would equally have been required to carry out civil partnership duties and would have been subject to the similar disciplinary process if he or she had refused, then that necessarily prevents any finding that there has been direct discrimination on grounds of religion or religious belief. »[13]

 

Conclusions

We would argue that the general vision of this law is one in which discrimination is wrong, but can be allowed for exceptional reasons (e.g. public policy) or for the internal activities of defined institutions (e.g. an established religious institution or a faith-based school), but that this last category is not a category providing ‘public’ services, facilities or goods. Our conclusion is that the 2006 Act does not set out to protect religious freedom, but simply to make discrimination against someone on religious grounds unlawful, while recognising some strictly limited situations in which the internal running of private organisations can justify discrimination. Also, it can be argued that the 2006 Act does not, in effect, protect religious freedom, and even that it potentially undermines religious freedom. This last point can be argued from the recent cases cited. Indeed, in several of these cases, the Equality Commission provided legal and financial support for the parties alleging unlawful discrimination, as the act allows, but no financial or legal support was available to the other parties involved, whose arguments were based on religious freedom. Also, the judges refused to accept that religious convictions could under any circumstances be considered as sufficient to justify discrimination on grounds of sexual-orientation in the providing of facilities, services or goods to the public. We suggest that it can indeed be reasonably argued, for these reasons, that religious freedom is less well protected under the legislation as currently operated than prior to the passing of the 2006 Act.

We suggest that the current legislation, and the judicial interpretation of cases, positions religion as a value only in the private sphere, and allows only for religious freedom understood as a freedom from interference in the private sphere but not as a freedom to act in the public sphere according to religious principles and as a contribution to the common good. Quite clearly, the Equality Act 2006, in its structure and content, and in its consequences in jurisprudence, does not measure up to the definitions of religious freedom that one finds, for example, expressed in the Second Vatican Council’s Declaration on Religious Freedom, Dignitatis Humanae. One finds for example (emphasis added) in paragraph 2:

“This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.”

And in paragraph 3:

“In all his activity a man is bound to follow his conscience in order that he may come to God, the end and purpose of life. It follows that he is not to be forced to act in manner contrary to his conscience. Nor, on the other hand, is he to be restrained from acting in accordance with his conscience, especially in matters religious.”

And paragraph 4:

 

“In addition, it comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity”.

 

One could argue that in not considering religious convictions and the freedom to serve the common good according to them as a part of the normal context of public life in Britain, the Commissioners are failing in their statutory duty under section 3 of the Equality Act 2006, as cited in full at the beginning of this paper, in the task of:

 

“… encouraging and supporting the development of a society in which … there is respect for and protection of each individual’s human rights,… for the dignity and worth of each individual… (that) each individual has an equal opportunity to participate in society, and … mutual respect between groups based on understanding and valuing of diversity and on shared respect for equality and human rights.”

 

These contrasting views are part of a lively and sometimes bitter public debate in Britain today, although the cases we have referred to indicate that the judiciary, at least as the law stands, are not willing to sustain a concept of religious freedom as one where religiously-principled choices can be for the common good when they contrast anti-discrimination laws.

In the specific context of Britain today, less than one year after the State visit of Pope Benedict XVI, it is worth noting some of his affirmations to the political establishment in Westminster Hall on September 17th 2010:

 

“Religion, in other words, is not a problem for legislators to solve, but a vital contributor to the national conversation. In this light, I cannot but voice my concern at the increasing marginalization of religion, particularly of Christianity, that is taking place in some quarters, even in nations which place a great emphasis on tolerance.

There are those who would advocate that the voice of religion be silenced, or at least relegated to the purely private sphere. There are those who argue that the public celebration of festivals such as Christmas should be discouraged, in the questionable belief that it might somehow offend those of other religions or none. And there are those who argue – paradoxically with the intention of eliminating discrimination – that Christians in public roles should be required at times to act against their conscience.

These are worrying signs of a failure to appreciate not only the rights of believers to freedom of conscience

and freedom of religion, but also the legitimate role of religion in the public square.

I would invite all of you, therefore, within your respective spheres of influence, to seek ways of promoting and encouraging dialogue between faith and reason at every level of national life.”[14]

 

Equally relevant are the farewell remarks of Prime Minister David Cameron on September 19th 2010. Referring to the “new culture of social responsibility we want to build in Britain”, Mr Cameron continued:

 

“People of faith – including our 30,000 faith-based charities – are great architects of that new culture. For many, faith is a spur to action. It shapes their beliefs and behaviour; and it gives them a sense of purpose. Crucially, it is their faith that inspires them to help others. And we should celebrate that.

Faith is part of the fabric of our country. It always has been and it always will be. As you, your Holiness, have said faith is not a problem for legislators to solve but rather a vital part of our national conversation. And we are proud of that.

But people do not have to share a religious faith or agree with religion on everything to see the benefit of asking the searching questions that you, your Holiness, have posed to us about our society and how we treat ourselves and each other.

You have really challenged the whole country to sit up and think, and that can only be a good thing.

Because I believe we can all share in your message of working for the common good and that we all have a social obligation each other, to our families and our communities”.[15]

 

The Equality Act 2006 requires the Commission to report yearly to parliament, and provides for a public consultation every three years concerning its orientations and strategic plan[16]. It can be hoped that this consultation allows private citizens, faith groups and religious organisations to comment upon what some have perceived as the Commission’s anti-religious orientation. What this consultation cannot do is challenge the structure of the Act itself: a structure which we humbly suggest is fundamentally flawed with regards to an adequate affirming of religious freedom as a value for the common good.

 



[1] The Equality Act 2006, c.3, February 16th 2006

[2] Prior to the Act, religious freedom was guaranteed by a series of overlapping legal prohibitions, rights and privileges, many of which remain in force. This patchwork of laws did not purport to treat all religions equally; but it did effectively affirm the religious phenomenon as one situated well within public life. We can note that while historic privileges remain with the Established churches in England and in Scotland, minority religious groups have also seen themselves guaranteed significant rights.

One example is the state-sponsored denominational education obtained for minority Christian and non-Christian communities in Scotland and in Northern Ireland through a series of Education Acts from 1918 onwards. Another illustration concerns parliament. Bishops of the Church of England sit in the House of Lords. Since the House of Commons (Removal of Clergy Disqualification) Act 2001 repealed the prohibition contained in the Clergy Disqualification Act of 1801, Catholic priests and ministers of all non-established churches can sit as members of Parliament.

In what might seem a paradox, these examples illustrate that religious freedom and equality of treatment are not synonymous, much as this paper argues that the current equality legislation does not adequately protect religious freedom.

 

[3] Preamble to the Act, February 16th 2006

[4] For example, as studied below: Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales, Appeal decision dated April 26th 2011, CA/2010/0007

[5] See also, Daily Telegraph, April 30th 2010, Gary McFarlane: the counsellor whose case led to warnings of ‘civil unrest’

[6] See also Daily Telegraph, London, March 1st 2011

[7] Johns, Para.  61

[8] See also: Haaretz, October 27th 2009, UK Jewish school appeals racial discrimination ruling; The Guardian, December 16th 2009, Jewish school loses appeal

[9] Catholic Care, Para. 14

[10] Ibid., Para. 60

[11] Catholic Care, Para. 56

[12] For media report see: www.intoleranceagainstchristians.eu Homosexual couple Sues christian B&B owners for denying them a room

[13] Ladele, paragraph 64

[14] Benedict XVI, Address to Politicians, Diplomats, Academics and Business Leaders, Westminster Hall, London, September 17th 2010, © Libreria Editrice Vaticana

[15] David Cameron, M.P. Prime Minister’s Farwell Address to Pope Benedict XVI, Birmingham, September 19th 2010, © Prime Minister’s Office

[16] cf. Schedule 1 to the act

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