UK CONSULTATION ON THE EUROPEAN COMMISSION PROPOSAL FOR AN EQUAL TREATMENT DIRECTIVE Response from the Catholic Bishops’ Conferences of England and Wales and Scotland
Overview
1. The Catholic Bishops’ Conferences of England and Wales and Scotland
welcome the opportunity to contribute to the consultation exercise on the
proposed Equal Treatment Directive. Before commenting on the text of the
proposed Directive in detail, there are some important general points to
establish.
2. Firstly, the Catholic Church commends the moral principle underlying the
Bill on the basis of the innate dignity of every person as made in the image
of God.
3. Secondly the Church is not seeking special provisions which exempt it
from universally applicable requirements. However the Directive already
recognises the validity of varying treatment in particular circumstances, for
example risk assessments based on age or disability in relation to financial
services. And the Church also recognises that groups which do not agree
with its teaching should be free to organise themselves and to propagate
their views as they wish.
4. What the Church is seeking from this Directive is simply the right to
maintain its own teaching and activities with integrity, according to its own
ethos. The rights of Freedom of Religion and Freedom of Expression
under Articles 9 and 10 of the European Convention on Human Rights are
of fundamental importance in a democratic society – and doubly so in one
which prides itself on tolerance and diversity. The key issue for the Church
in responding to the consultation is the extent to which the proposed
Directive may have the effect of limiting the exercise of those fundamental
rights.
5. As the Directive covers religion, belief, disability, age and sexual
orientation, it is inevitable that circumstances will arise where the right to
equal treatment under the directive will involve competing rights, either
within a protected characteristic or between them, given the incompatibility
of some of the beliefs concerned. If the Directive is unable to provide a
means of balancing those competing rights, there is a risk that practical
implementation may effectively turn the Directive into an instrument of
oppression against one or other group. It is in nobody’s interest for these
issues to be left unclear, with organisations and individuals unguided until
matters have finally been resolved in the European Court.
Detailed comments
Recitals
6. Paragraphs (2) and (3) cite various international instruments but no direct
reference is made to Articles 9 and 10 of the European Convention on
Human Rights. As these directly establish the rights to freedom of religion
– as practice and belief – and to freedom of expression it would be helpful
to the understanding of the Directive to have specific reference to the
them.
7. Para. (11) et al. uses the phrase ‘without prejudice to the competencies of
the Member States’. We are concerned that the recent Maruko judgement
(ECJ, 1 April 2008, Case c-267/06, T. Maruko vs. VddB) and other case
law may render a ‘without prejudice’ clause irrelevant when a matter
comes before the ECJ. If so there are grave concerns about the extension
of community competence by the courts without any prior political process.
Articles
8. Article 2 (3) defines harassment as ‘unwanted conduct … with the
purpose or effect of violating the dignity of a person and or creating an
intimidating, hostile, degrading, humiliating or offensive environment’. That
is to say that no intention is required, the test is entirely subjective, and as
the burden of proof is reversed, if a person declares themselves to be
offended, there is no legal defence as the respondent cannot prove that
the complainant was not offended.
9. Discrimination under this Directive is not restricted to employment, and so
this subjective approach to harassment will apply in all walks of life,
including academic discourses, sermons, theatre, television and radio
discussions. Various pressure groups are likely to use the provisions of the
Directive to curtail the expression of views they disagree with by the
simple expedient of declaring themselves to be offended. Homosexual
groups campaigning for same sex marriage may declare themselves
offended by the presentation of the Catholic Church’s moral teaching on
homosexual acts; Catholics may declare themselves offended by a ‘Gay
Pride’ march; an atheist may be offended by religious pictures in art
gallery; a Muslim may be offended by any picture representing the human
form.
10. However, freedom of expression is a right which should be used with due
regard to others’ feelings. To strike the right balance, the conduct should
have both the ‘purpose and effect’ and the consequences should be
limited to creating an ‘intimidating, hostile, degrading or humiliating’
environment, on which a more objective judgement could be made than on
‘offensiveness’.
11. Art. 2 (6&7) correctly allow for differences of treatment in relation to age
and disability in certain circumstances. In the Church’s view an additional
sub-paragraph is needed confirming that differences of treatment shall not
constitute discrimination where such differences are required to enable a
religious body to function in accordance with its ethos. A provision of this
nature would go a long way to ensure that competing rights are balanced,
rather than religious sensibilities being ignored or becoming the subject of
tendentious claims.
12. Art 3 (1) (d) includes within the scope of the Directive discrimination in
relation to ‘Access to and supply of goods and services which are
available to the public including housing’. It is not clear whether ‘goods and
services’ would apply to the activities of a Catholic priest, if, as recently
occurred, he were to refuse to take a booking for a Church Hall from a
group of witches. These potential problems could be avoided by the
addition of the ethos clause recommended at para. 11 above.
13. Art 3 (4) states that the Directive is ‘without prejudice to national legislation
… concerning the status and activities of churches and other organisations
based on religion or belief’. However, it is not clear that in the absence of
specific national legislation the activities of a priest referred to in para. 12
above would benefit from this clause – and the Maruko judgement may
render it meaningless even if applicable.
14. Art. 13 requires Member States to ensure that ‘any …internal rules of
undertakings, and rules governing profit or non-profit-making associations
contrary to the principle of equal treatment are, or may be, declared null
and void or are amended.’ This could have the effect of requiring Catholic
organisations to act against their ethos: if a Catholic event takes place at a
venue that offers double, twin, and single bedded rooms, the teaching of
the Church would require that double bedded rooms were only available to
married couples. Under Article 13 the rule (and the practice it governed)
could be unlawful for failing to provide equal treatment to unmarried
heterosexual couples or to homosexual couples. At this point the EU
would effectively be dictating to religious bodies what their faith does or
does not require: a wholly unacceptable position.
15. Art. 15 requires implementation of the Directive within two years of
adoption. Given the wide scope of the Directive and the need for careful
guidance on its application, particularly where there are competing rights,
two years may be far too short a time-scale, particularly for Member States
with less experience in these areas than the UK.
Monsignor Andrew Summersgill
General Secretary, Bishops’ Conference of England and Wales
July 2009
Tags: Law Moral Ethical, Politics