| ‘The Council needs to give a lead on how limits should be set’
THE Government’s Discrimination Law Review aimed to streamline the multiplicity of laws that now cover six strands of discrimination: race, gender, age, disability, sexual orientation, and religion. The outcome was a consultation document, A Framework for Fairness. This set out proposals for a Single Equality Bill for Great Britain. The Government’s objective is “to produce better outcomes for those who currently experience disadvantage”.
The Archbishops’ Council responded to this document (News, Comment, 14 September). Its apparent objective was to preserve all the exemptions that allow religious bodies to continue discrimination. A key concern was what the Council perceives as a trend towards giving religion a lower priority.
The Council said: “The argument appears to be that, because religion and belief is susceptible of personal choice in a way that is not the same in relation to other strands, that means that religion and belief should be subordinate to those other strands when they come into conflict. We think that this is a false analysis.”
A Council spokesman expanded on this: “Arguments [are] being advanced in some quarters to the effect that sexual orientation is an ‘immutable characteristic’ and central to a person’s identity, in contradistinction to religion and belief, the argument being that the latter is simply ‘chosen’ by individuals. We would argue to the contrary that a person’s religion is capable of being as much (if not more) of a central aspect of their identity as their sexual orientation.”
The key legal provision is Article 9 of the European Convention on Human Rights. This provides that the right to freedom of thought, conscience, and religion is an absolute right, which cannot be subject to any limitation or restriction.
But the right to manifest one’s religion or belief in practice is expressly defined in Article 9 as a qualified right. This means that it can be limited by national laws, “in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others”.
It is also now clearly established in European case law that sexual orientation has joined race and gender as a ground for which discrimination requires “particularly weighty justification”. Specific limitations on the manifestation of religious beliefs about homosexuality may therefore be not merely lawful, but justifiable in a democratic society, as the parliamentary Joint Committee on Human Rights (JCHR) said last December. The Archbishops’ Council is, it seems, challenging this principle.
The Government had asked whether any further clauses about harassment should be added to the existing laws. The Council spokesman said: “Our position is that it is undesirable to extend provision in respect of harassment into the areas of sexual orientation and religion at all. . . Our concern is that any [his italics] extension of the harassment provisions could not achieve a satisfactory outcome and would give rise to unhelpful litigation in relation to the expression of legitimate views.”
However, if the Government does add such clauses, then the Council argued that religion must not be given inferior status: “To extend full protection against harassment to some grounds, but not to religion and belief, would result in the creation of a hierarchy of rights, with religion and belief in the lowest place. We cannot accept that this should be the case.”
The Council spokesman explains: “Followers of a religion — and not simply its ministers or institutional bodies — should be able to continue to exercise their Article-9 rights to manifest their religious belief: evangelism is a function of all Christians, not just of the clergy. . . What we do seek is to ensure that . . . the Article-9 right of freedom to manifest religious belief is not infringed.”
The Government consultation had said: “The Human Rights Act 1998 requires the courts to interpret all legislation compatibly with convention rights. These include the right to freedom of thought, conscience and religion (article 9) and freedom of expression (article 10), so these fundamental values are already protected, allowing the courts to strike a proper balance.”
The Council responded that it did not find this assurance sufficient. Yet, unusually, it made no specific proposal for a remedy. As its spokesman said: “In our paper we were concerned to set out our policy objective, rather than to get into the detail of how provisions to give effect to that policy should be drafted.”
The British definition of harassment is wider than the one prescribed by the EU directive, and the Government suggested that bringing ours in line with the European wording might be appropriate. This would, as the JCHR said, “reduce the risk of incompatibility with the right to freedom of speech and freedom of religion and belief”.
Concerns expressed by the judge in the recent judicial review of the Northern Ireland Sexual Orientation Regulations (which struck down the harassment clauses there on procedural grounds) add weight to this recommendation (News, 14 September).
Reasonable limits on the manifestation of religious belief are now essential in our pluralist society. The Archbishops’ Council needs to give a lead on how they should be set, instead of fretting about its freedom to discriminate.
Simon Sarmiento is one of the founders of Thinking Anglicans. |
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