The Equality and Human Rights Commission has published a major review of human rights protections in the UK. The executive Summary and links to all parts of the review can be found on this link.
Of course, the pertinent section of the review for this blog is Article 9: The right to freedom of thought, conscience and religion (PDF).
I’m no lawyer and so will simply highlight a few snippets that I thought were of interest:
Article 9 of the European Convention on Human Rights provides that:
1. 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.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.
Article 9(1) protects the right of individuals to hold religious and other beliefs, and to practise them alone or with other people. It also protects people’s right to freedom of conscience, and the right to follow one’s own ethical and moral principles in one’s actions. The right to hold, as distinct from to manifest, religious and other beliefs is an absolute right.
Holding a belief may be intrinsically bound up with manifesting it, for example, through worship, teaching others, the wearing of symbols or of special clothes, or the avoidance of certain foods. The right to manifest a belief is a qualified right and its limitation is permissible if it is prescribed by law and can be justified as being necessary in a democratic society in the interests of public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others.
It was not until the Human Rights Act 1998 (HRA) that legislation recognised a general legal right to religious freedom. Anti-discrimination provisions followed in 2003 and 2006 and today Britain’s Equality Act 2010 prohibits discrimination because of religion or belief in connection with employment, vocational training, education, premises and the provision of services, and by public authorities and associations.
Domestic case law on freedom of religion and belief is developing as a result of the implementation of the Human Rights Act and of domestic provisions regulating discrimination relating to religion and belief. The Commission has identified three areas in which we believe that the law should be interpreted in a way that is more strongly protective of Article 9 rights and that appropriately balances Article 9 and other rights.
I thought it interesting that article 9 has been used to protect not only religious belief, but also philosophical beliefs such as: atheism, veganism, environmentalism and pacifism.
Although Article 9 does not seek to define ‘religion’ the review quotes Williamson in the House of Lords who suggested:
‘when questions of “manifestation” arise … a belief must satisfy some modest, objective minimum requirements . The belief must be consistent with basic standards of human dignity or integrity. … The belief … must possess an adequate degree of seriousness and importance … it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification … Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the convention…’
The review goes on to say:
…..the Act allows organisations with a religious ethos to discriminate in offers of employment and in the provision of services in specific circumstances, recognising that religious beliefs influence the way such organisations run themselves.
Several cases have been about whether an employee can refuse to provide a service which conflicts with their religious views, where this may result in discrimination against others. Judges have had to strike a balance between the competing rights of an individual or group to manifest religious beliefs and the rights of others not to be discriminated against. Cases have considered a Christian registrar of marriages who refused to carry out civil partnership ceremonies for same-sex couples; a Christian relationship counsellor who refused to counsel same-sex couples on sexual issues; Christian hoteliers who refused accommodation to same-sex civil partners; and a Catholic adoption agency which wanted to provide adoption services to heterosexuals alone.
The courts have so far ruled that employers or organisations can legitimately limit the freedom of employees to manifest their religion or belief to prevent discrimination against other individuals or groups.
The lack of success of some claimants who bring cases under Article 9 or the Equality Act (or its predecessor legislation) has prompted some religious groups to argue that the right to manifest religion or belief is treated by the law as a ‘lesser right’ than others. They argue that religious discrimination claims are too readily trumped by the aim of preventing discrimination on other grounds. This view does not appear to be widely held, however, among the representatives of different religious groups. In contrast, other groups believe that religious groups enjoy a privileged position in the UK, and that the law does not provide sufficient protection to those without religious beliefs.
Minority communities tend to view equality legislation as a ‘guarantor’ of a ‘level playing field’.
Many of the Article 9 and other cases on religion have attracted considerable media coverage and public debate. The issues are contentious, but the experiences of the claimants are not necessarily representative of the common experience of other people following a particular faith, or a reliable indicator of the public role for religion or belief in society. It is also difficult to read legal or social ‘trends’ from the judgments as the cases are context- and fact-specific.
The UN Special Rapporteur on freedom of religion or belief found in 2008 that the UK government had ‘balanced approaches in responding to difficult situations with regard to freedom of religion or belief and the contentious issues involved’ and welcomed the case-by-case approach which allowed each complaint to be judged according to particular circumstances.
The Equality and Human Rights Commission believes that the domestic courts have taken the appropriate approach in cases balancing competing interests. Some forms of manifesting belief, such as wearing religious clothing or jewellery, are likely to have a limited impact on other people; but other forms of manifestation may result in a refusal to provide a service to, or different treatment of, a particular group of people, and so may affect their fundamental rights and freedoms. The Commission believes that an employer may legitimately refuse to accommodate an individual’s religious beliefs where such accommodation would involve discrimination on the basis of other protected characteristics. In a public sector context, employers are also obliged by the Equality Act 2010 to have due regard to the need to advance equality of opportunity for protected groups; so public sector employers cannot legitimately agree to actions which undermine the equality of opportunity for groups defined
by reference to the protected characteristics.
The review goes on to explore two key issues; namely:
1. Courts are setting too high a threshold for establishing ‘interference’ with the right to manifest a religion or belief, and are therefore not properly addressing whether limitations on Article 9 rights are justifiable
2. Indirect discrimination provisions in domestic law covering protection for individual beliefs may not be consistent with Article 9
It looks at the legal cases brought under Article 9 in respect of these key issues (Page 11 onwards) and is worth a read.