Marriage (Same Sex Couples)

Memorandum submitted by the Catholic Bishops’ Conference of England and Wales (MB 38)

Introduction

1. This memorandum sets out the current concerns of the Catholic Bishops’ Conference of England and Wales regarding what we consider to be the adverse effects of the Bill, in the form agreed by the House of Commons at Second Reading and now being considered in Committee, on the religious freedoms of the Catholic Church, Church-related institutions and bodies, and individuals.

2. It takes into account, and responds to, the letter the Secretary of State has sent to Archbishop Smith, dated 1st February 2013, for which we are most grateful. To avoid unnecessary repetition, we refer to the Catholic Church in what follows simply as ‘the Church.’

3. We take with the utmost seriousness the Secretary of State’s commitment set out in the Impact Assessment that the Government published to accompany the Bill. This states: ‘There will be no requirement for any religious body to marry same-sex couples if they do not wish to, nor will there be any requirement for a religious organisation to permit the marriage of same-sex couples on their religious premises, if they do not wish to allow this.’

4. The statement continues: ‘[T]o meet [this] objective …, no religious body will be required to marry or permit the marriage of same-sex couples on its premises if it does not wish to ….’ The Impact Assessment goes on to commit the Government to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation.’ [1]  

5. We are most grateful for these commitments. Regrettably, we do not consider that the assurances provided by the Secretary of State are yet sufficiently credible to assure us that these commitments have been met.

6. Whilst the opposition of the Church to the principle of the Bill is well known, the House of Commons has, by a majority, now accepted the principle of the Bill, and we do not seek to re-open that debate of principle at this time. The changes we seek are not intended as ‘wrecking’ amendments but as good faith efforts to address our concerns over the human rights implications of the Bill as it is currently drafted, rather than to question the principle of the Bill.

7. We do not say that all or, indeed, any of the problems we identify are certain to occur. We consider, however, that the concerns we identify are sufficiently credible risks that Parliament should be informed about, debate, and address them. We would be more than happy to be assured that we are mistaken, or that the problems we identify are less significant than our assessment of the Bill has led us to believe.

8. This Memorandum is in three parts: the first part sets out several general principles that we consider should be taken into account in considering the implications of freedom of religion for the Bill, and Parliament’s responsibilities in this context; the second part sets out the Church’s concerns regarding the adverse effects of the Bill on the ‘institutional’ aspects of freedom of religion; and the third part sets out the Church’s concerns on the freedom of religion of individuals.

I. GENERAL CONSIDERATIONS

1. Freedom of religion and belief

9. Since many of our detailed concerns, as set out below, involve issues of freedom of religion and belief, and since public discussion surrounding the Bill seems to indicate differing understandings of what freedom of religion requires, we hope it will be helpful if we clarify initially what we mean by freedom of religion and what we think it requires.

10. There are three aspects to the idea of freedom of religion and its relationship to the public sphere. Each of these three dimensions of freedom of religion and belief is engaged in considering the Bill now before the Committee. Our understanding of the idea of freedom of religion is informed by, but not limited to, judicial interpretations of Article 9 of the European Convention on Human Rights.

11. First, religion is as an aspect of an individual’s identity and belief system. Freedom of religion and belief in this sense is conceived as an individual right, and the issue is how far the choices that an individual makes, based on this set of religious beliefs, are protected or constrained by law. Freedom of religion and belief, in this sense, encompasses two elements: the freedom to believe what one’s religion teaches, and the freedom to manifest that belief in certain actions.

12. Religious freedom also has a second, associational (or ‘institutional’), dimension. Freedom of religion and belief in this sense involves the freedom of individuals to come together in formal or informal ways, to practice their religion in common with each other, and to manifest their beliefs collectively. This relationship might (or might not) be formalized by the formation of a church. Seen in human rights terms, the issue becomes one of what rights the religious community or association or church has, when it acts in a way that impinges on the public domain.

13. There is also a third aspect of freedom of religion and belief: ‘freedom from religion and belief’, or at least freedom from a set of religious or other beliefs imposed as an exercise of state authority. During the Second Reading of the Bill, several Members of Parliament seemed to be under the misapprehension that the Church is seeking to impose its religious views on the State. That is not the case. Equally, we hope that the State will not seek to impose its views on the Church, or on individuals who dissent from the State’s policies.

14. It is, of course, the case that none of these features of freedom of religion and belief is absolute. This is true in two senses. First, other aspects of the public good will play a legitimate role in limiting freedom of religion in particular respects. Second, the three aspects of freedom of religion identified may on occasion conflict with each other. How to reconcile these three aspects of freedom of religion with each other, and with the public good more generally is, we understand and accept, enormously difficult.

15. The reconciliations and compromises that Britain has adopted in the past are now under considerable strain. We are now at a cross roads, and two different models of accommodation are possible. The first approach is pluralistic. Under this approach, religion is present in the public as well as private spheres of activity, and is even to some extent encouraged in the public domain, not least because religious belief is seen as making an important contribution to public debate and public discourse.

16. The alternative model adopts the view that the purpose of freedom of religion and belief is essentially only there to protect private choices, and views the participation of religions, and those who are religious, in the public sphere with suspicion. We consider that the pluralistic model is to be preferred, but we realize that others will disagree.

17. We consider the Parliamentary consideration of this Bill is an important moment in British life, one not often encountered, when the choice as to which approach is to be preferred is now presented in a stark manner. We have set out, we hope clearly, our preferred approach, and we suggest below how these principles apply to the detailed consideration of the Bill that the Committee is now commencing.

2. Need for clarity on the face of the Bill

18. Leaving aside the issue of which approach to freedom of religion is to be adopted, there is an additional vital issue, which is who should decide which model is to be adopted in British law.

19. We suggest that the choice is squarely one that the British Parliament should make, and that Parliament’s responsibility in making these choices should not be evaded by leaving these issues to the domestic courts, as the Secretary of State in her Letter appears to us too willing to do.

20. We realize that this means that hard choices will be required by Parliament, but it is Parliament’s responsibility to make these hard choices. It is a truism that whilst the Executive proposes, and the Queen-in-Parliament enacts legislation, it is the courts that are responsible for interpretation of that legislation. But Parliament is able, and has the responsibility, to influence this interpretation by clear and unambiguous drafting. [2]

21. We consider that clarity on the face of this Bill is particularly important given that the legislation is likely to provide the legal framework for marriage for many generations to come. We cannot rely on the courts to give any weight to Ministerial assurances in the long term if the provisions of the Act itself are not crystal clear in reflecting those assurances.

22. Nor do we consider that the churches can any longer rely on previous presumptions at common law that the courts will not intervene in the internal affairs of the churches. The Secretary of State has stated in her letter, in general terms, that: ‘We consider that the right of a religious authority to act in accordance with its own teaching, especially when the law specifically says that it can, is beyond any doubt’ (emphasis added). We disagree.

23. Whilst those assurances may have been convincing in the past, we no longer consider that they are convincing, in light of judicial decisions over the past decade. [3] We do not complain that the approach of the judiciary has changed, but we urge Parliament to take this significant change into account in considering the concerns we identify in this Memorandum, and not to rely on outdated assumptions of judicial empathy for religious autonomy

3. Issues concerning the European Convention on Human Rights

24. Much of what we suggest below, by way of necessary amendments, is to meet issues that arise under domestic British law, such as under the Equality Act 2010. The European Convention on Human Rights plays two rather different roles in the context of discussions on the Bill. First, the Secretary of State sees the Convention (particularly Article 9) as establishing a shield, providing strong protections for freedom of religion and belief, so that many of our concerns are groundless. Second, concerns have been raised that the Convention might be used as a sword to attack protections for freedom of religion that the Bill seeks to incorporate.

25. We address both these issues below when dealing with specific issues, but here we seek to explain our general approach to both these issues.

26. Turning to the first issue, concerning the role of Article 9 in providing protection for freedom of religion. The Secretary of State has consistently argued that Article 9 of the ECHR will serve as a strong protection of the Church’s and individual’s freedoms of religion and belief. We disagree. In practice, Article 9 has proven to provide very weak protection indeed, both when being applied by the European Court of Human Rights, and (as a consequence) when being applied by British courts under the Human Rights Act.

27. The weakness of Article 9 lies not just in the narrow approach that the European Court of Human Rights has taken to the interpretation of what a protected ‘manifestation’ of religion covers, but also because freedom of religion and belief is often ranked as significantly less weighty than other rights when it comes into apparent conflict with them. [4]

28. When claims are made, therefore, that Article 9 provides strong protections, we suggest that these claims be taken with a large pinch of salt, unless ‘freedom of religion’ is interpreted very narrowly indeed, effectively protecting religion (and religious institutions and individuals) only when they have been relegated to the private sphere of activity. As we have said, that is not our view of freedom of religion and belief.

29. Just as we consider that it is initially Parliament’s responsibility to make hard choices, rather than simply leaving it to the domestic courts, so too we consider that it is vital that these decisions be addressed initially at the national level rather than simply leaving it to the European Court of Human Rights to address, and resolve, these issues. The Court has consistently made it clear that the best possible approach is that clear and proportional choices should be made at the national level, which may then be subject to scrutiny. The more that States, such as the United Kingdom, suggest that the ‘margin of appreciation’ should apply, the greater the obligation that hard choices are confronted initially at the national level, rather than evaded.

30. Lest there be any confusion, we should also point out that the European Convention on Human Rights provides a minimum standard with which the United Kingdom must comply; it provides a floor, not the ceiling. The Convention, and the limited protection that Article 9 provides, should not be regarded as all that Parliament should seek to guarantee, as the Secretary of State occasionally seems to imply. Parliament clearly has a responsibility to comply with the minimum standards that the Convention requires, but it also has a responsibility to consider whether British law should go further in certain respects than the Convention requires. We suggest that this is particularly the case as regards the protection of freedom of religion in the context of this Bill.

31. Turning now to the issue of whether the Convention can be used to attack the protections incorporated in the Bill for religious freedom, before we consider more detailed issues there is a general consideration that we urge Parliament to take into consideration. The area of human rights law has been one of the most dynamic and fluid areas of legal development in Britain, and in Europe generally, not least over the past fifteen years. This is because both the British and European courts consider human rights law to be a ‘living tree’, the interpretation of which develops over time to accommodate changing mores.

32. What may appear, therefore, to be ‘inconceivable’ [5] interpretations of human rights and equality law are unlikely to remain so for long, as mores change. Again, we do not complain that this is the case, but Parliament must legislate taking this fact into account, rather than presuming that currently ‘inconceivable’ interpretations will continue to be ‘inconceivable’. [6]

33. We now turn to setting out our detailed concerns about the Bill. We have used the structure of the current Bill so far as possible, identifying the particular Clause under which the particular concern might best be considered.

II. ‘INSTITUTIONAL’ FREEDOM OF RELIGION ISSUES

4. Clause 2(1): the protections for religious organisations against ‘compulsion’ to opt-in

34. The Government has sought to reassure religious organisations that they will not be required under any circumstances to conduct same sex marriages if they object to them, and we have welcomed the Government’s intention to protect religious organisations.

35. Clause 2 of the Bill sets out one of the main ways in the Government has sought to protect religious organisations, by providing that religious organisations may not be ‘compelled’ to opt-in, and by providing that religious organisations may not be ‘compelled’ to conduct same sex marriages.

36. Clause 2, subsections (1) and (2) provide as follows:

(1) A person may not be compelled to-

(a) undertake an opt-in activity, or

(b) refrain from undertaking an opt-out activity.

(2) A person may not be compelled-

(a) to conduct a relevant marriage,

(b) to be present at, carry out, or otherwise participate in, a relevant  
marriage, or

(c) to consent to a relevant marriage being conducted,

where the reason for the person not doing that thing is that the relevant   marriage concerns a same sex couple.

37. Whilst we welcome the recognition that protections are necessary, we do not consider that these provisions adequately address the problem, because it is entirely unclear what the protection from being ‘compelled’ means in these circumstances. It is, arguably, quite limited in the scope of its protection.

38. The limited case law that is available, in which protection from ‘compulsion’ applies, seems to indicate that a protection from ‘compulsion’ may be very narrow in scope, essentially only providing protection from the imposition of criminal punishment. [7]

39. We assume that the Government intends to provide greater protection than this, although this has not been made explicit. The Government’s apparently broader intention is indicated by the fact that the exception to the Equality Act 2010, providing that it is not contrary to section 29 of that Act to refuse to solemnize a same-sex marriage, is headed: ‘no compulsion to solemnize etc’ (emphasis added).

40. In introducing this specific and limited exception to Section 29, however, the Government has introduced another uncertainty into the meaning of ‘compulsion’: if it is necessary to provide explicitly on the face of the Bill for an exception to section 29, then we have to assume that without such an explicit exception, the protection against compulsion would not by itself have been enough to ensure such an exception.

41. What the government intends the protection against compulsion to cover is therefore left entirely unclear. Does it protect against any legal penalties (not just criminal penalties) being imposed as a result of a decision not to opt-in? Does the protection against ‘compulsion’ protect a religious organisation from being treated less favourably by a public body that objects to the religious organisation’s decision not to opt-in? Does the protection against ‘compulsion’ protect a religious organization from legal action taken against it in connection with its decision not to opt-in? We do not know.

42. Instead of relying on the uncertain term of ‘compulsion’, we suggest that this blanket protection is no substitute for, and therefore should be supplemented with, targeted protections on the face of the Bill directed at preventing specific, credible risks of unacceptable pressure to opt-in. The government has appeared to accept the necessity of doing so in the context of section 29 of the Equality Act. We suggest additional amendments.

5. Clause 2(5): the exception to Section 28 of the Equality Act 2010 is too limited

43. We have seen that Clause 2(5) inserts an exception to Section 29 of the Equality Act 2010 into that Act, and we have suggested that in doing so it has introduced further confusion as to the meaning of ‘compulsion’.

44. That problem aside, there are other significant issues that arise from the proposed exception. First, it is unclear which particular provisions of Section 29 are thought likely to give rise to successful litigation if an exception is not included. Broadly speaking, Section 29 does two, rather different, things. It prohibits discrimination by a ‘service provider’, and it prohibits discrimination ‘in the exercise of a public function’.

45. It is unclear, therefore, whether the Government considers it necessary to provide an exception to Section 29 because the solemnization of a marriage, etc is regarded as the provision of a ‘service’, or because it is considered to involve the exercise of a ‘public function’. The Explanatory Notes do not appear to provide any explanation.

46. This is important because the proposed exception to Section 29 of the Equality Act 2010 only applies to the range of activities listed in Clause 2(2), not Clause 2(1). It is unclear why this is so, and what the implications are of limiting the exception in this way.

47. It may be that the Government considers that an exception relating only to the activities listed in Clause 2(2) is necessary because it is only those activities that involve the likelihood of intentional discrimination on the grounds of sexual orientation, but that seems an entirely unconvincing explanation. The exercise of activities listed in Clause 2(1) is likely to be influenced by exactly the same considerations.

48. Or it may be that the Government considers that the activities listed in Clause 2(2) involve the provision of a ‘service’, and that the activities listed in Clause 2(1) do not. That is the more likely reason, but it would be useful if the Government were to confirm that this is their understanding.

49. If that is the Government’s understanding, however, then a different problem arises. Section 29(6) also provides:

‘A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination’

50. Even assuming that a religious organization would not be considered to be a ‘service provider’ for the purpose of the activities referred to in Clause 2(1), the question arises whether these activities could nevertheless be considered to involve the exercise of a ‘public function.’ If they do involve the exercise of a public function, then the religious organization deciding not to opt-in would be at risk of a successful discrimination claim, by virtue of section 29(6).

51. As we shall see, the issue of whether decisions by religious authorities to opt-in are ‘public functions’ arises not only in this context, but also in the context of the operation of the Human Rights Act 1998, and common law judicial review. We will return to this issue below.

6. Clause 2(5) fails to address the implications of the Public Sector Equality Duty

52. Under section 149 of the Equality Act 2010, most public authorities, such as local authorities, are under a duty to have ‘due regard’ to the need to ‘advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it.’ In particular, public authorities must have ‘due regard’ to the need to ‘remove or minimize disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic’.

53. The Bill appears to do nothing to prevent public authorities from penalising a decision by a religious organisation not to opt-in to same sex marriage. It is not at all clear that Clause 2(1) protects religious organisations from such less favourable treatment.

54. In its response, the Government appears to have misunderstood our concern about the use of section 149 of the Equality Act 2010 as narrower than it is. The Government states that our concern is that ‘a public authority [should] not use a religious organisation’s opposition to marriage of same sex couples as a reason for deciding not to enter an agreement or partnership with that organisation.’ Put more precisely, our concern is that the Bill does nothing to prevent religious organisations which do not opt-in to same sex marriage from being treated less favourably by public authorities, for example by refusing to award public contracts or grants to religious organisations, on the basis that the public authority is given discretion to do so under section 149.

55. We agree with the Secretary of State that the public sector equality duty is, of course, a duty to have ‘due regard’, that this ‘would not make unlawful an otherwise wrong or oppressive act’, (possibly, although not necessarily) that it ‘applies to religion or belief in the same way as to sexual orientation’, and that the treatment that we are concerned that public authorities might engage in ‘would be vulnerable to challenge by the religious groups on other judicial review grounds.’ This is all (relatively) common ground.

56. However, since the enactment of the first public sector duty in 2001, there has been extensive litigation, which has significantly expanded the discretion of public authorities to which the duties apply. In particular, the courts have consistently interpreted the duty of ‘due regard’ more robustly than the Government acknowledges by interpreting it as a duty to further equality of opportunity, and not just as a duty to avoid discrimination. Public authorities have, in practice, used this discretion to pursue broad equality aims, including by denying public contracts to organisations that the public authority regarded as unsuitable (on equality grounds) for the public authority to be associated with, and this appears to be entirely legal.

57. Whilst accepting that the equality duty expands the discretion of public authorities, the Courts have also been reluctant to second guess the discretion of public authorities where allegations have been made that more weight should have been given to a particular ground of equality. [8]

58. The fact that the public sector duty now imposes duties on multiple grounds (race, gender, sexual orientation, religion, etc), means that public authorities have a significant discretion how best to balance these grounds if they are perceived to clash; it is not be at all clear that the public authority’s exercise of its discretion to make clear its opposition to a Church’s decision not to opt in to conducting same sex marriage by refusing to enter into contracts with that body would be unreasonable or otherwise ultra vires. [9]

59. The Secretary of State is careful not to state that a judicial review of a public authority that engaged in this less favourable treatment would be successful, just that the decision would be ‘vulnerable to challenge’ (emphasis added). The failure to reassure us that the actions of the public authority would be clearly ultra vires fuels our concerns even further.

60. The Secretary of State’s bland assertion that ‘In our view, similar reasoning would apply in such a case as arose in Wheeler v Leicester City Council’, the only substantive argument that is made by the Government, is not in any way reassuring. The Wheeler case was decided in 1985 before any of the modern public sector duties at issue were enacted; the first of the modern duties was not enacted in Britain until after the Stephen Lawrence Report in 2001. The Wheeler case was not, therefore, an interpretation that squarely addresses the problem we raise.

61. Even if it were to be established that the actions of the public authority were ultra vires, such a clarification would only be as a result of a judicial review being taken by Church-related bodies, which would be time-consuming and expensive. If the government agrees that the less favourable treatment should be ultra vires, then the appropriate approach is to make this clear on the face of the Bill, thus avoiding unnecessary litigation. We fail to understand why the Secretary of State ‘[does] not think it would be helpful to make legislative changes to the public sector equality duty’, when a narrowly tailored amendment is possible that would resolve the problem, without adverse consequences for the public sector equality duty more generally.

7. Clauses 4 and 5: decisions whether to opt-in may be reviewable under the Human Rights Act 1998, and ‘ordinary’ judicial review

62. Unlike the (limited) exceptions dealing with Section 29 of the Equality Act, no exception is provided in the Bill regarding the provisions of the Human Rights Act 1998. We shall see that there is an issue regarding the liability of the Government under the European Convention on Human Rights in Strasbourg, but there is also (separately) the question of liability of religious authorities under the Human Rights Act 1998 in the domestic courts. The issue we consider here is whether a decision by a religious authority not to opt-in is reviewable under that Act in the domestic courts.

63. There are two key questions that arise under the Human Rights Act in this context. The first is whether there is an arguable case that the discretion accorded to religious authorities to opt-in involves the exercise of a public function for the purposes of the Act. The second is whether there is an arguable case that the discretion accorded to religious authorities exercising a public function to opt-in breaches of the substantive provisions of the European Convention on Human Rights included in the Human Rights Act, given that the Bill permits religious authorities to discriminate on grounds of sexual orientation. We shall consider the ‘public function’ issue now, and deal with the substantive issue subsequently.

64. For the sake of convenience, it will be assumed that if a decision to opt-in involves the exercise of a public function under the Human Rights Act this will effectively also determine the similar issue arising in ‘ordinary’ judicial review and under Section 29 of the Equality Act (as mentioned above), although even that assumption is not beyond doubt.

65. It seems highly unlikely that, in general, the Catholic Church would be regarded as a ‘public authority’ for the purposes of the Human Rights Act. However, as is well known and legally uncontroversial, bodies that are not, generally, public authorities may nevertheless become subject to the Human Rights Act if they are regarded as ‘hybrid’ bodies, that is, if they exercise some public functions. In such a case, the exercise of the public function is subject to the Human Rights Act, whilst the exercise by the body of its other (non-public) functions will not be covered by the Act.

66. The relevant question is whether, given that the Catholic Church conducts marriages that are both religious and civil, this makes the Church a ‘hybrid’ public authority in the sense that it is carrying out a public function, namely conducting civil marriages. If this is the exercise of a public function, we suggest that this could render the Church’s decision not to opt-in to conduct same-sex marriages challengeable. The gloss in Clause 11(1) (which provides that ‘In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples’) may strengthen that argument.

67. The Secretary of State has responded as follows: ‘In our view, the decision to opt-in or not is not a public function – it is not a function of a public nature. The fact that it would enable a religious organization subsequently to undertake a function that is arguably of a public nature (ie the legal solemnization of same sex marriages) does not make any conduct prior to that also a public function. So we do not think these decisions would be susceptible to a claim under the Human Rights Act.’

68. Regrettably, we are unconvinced. The Government acknowledges that the legal solemnization of same sex marriages is ‘arguably of a public nature.’ We have suggested to the Government (and the Government has not indicated that we are incorrect), that the solemnization of opposite-sex marriages may also be ‘arguably of a public nature’, for the same reasons. Indeed, we suggest that it is clear that there is very little doubt that these are public functions.

69. We are strengthened in this regard by the speech of the Minister who was responsible for presenting the Human Rights Bill in the House of Commons, the Home Secretary (Mr Jack Straw):

Mr. Straw. (…) Before I speak on the amendments, it may be helpful if I say how the Government think that the Bill will operate in relation to the Churches. Much of what the Churches do is, in the legal context and in the context of the European convention on human rights, essentially private in nature, and would not be affected by the Bill even as originally drafted. For example, the regulation of divine worship, the administration of the sacrament, admission to Church membership or to the priesthood and decisions of parochial church councils about the running of the parish church are, in our judgment, all private matters.

In such matters, Churches will not be public authorities; the requirement to comply with convention rights will not bite on them. We do not believe that, for example, the Church of England, the Church of Scotland or the Roman Catholic Church, as bodies, would be public authorities under the Bill. I was asked to clarify that by many people, not least the Cardinal Archbishop.

On the occasions when Churches stand in place of the state, convention rights are relevant to what they do. The two most obvious examples relate to marriages and to the provision of education in Church schools. In both areas, the Churches are engaged, through the actions of the minister or of the governing body of a school, in an activity which is also carried out by the state, and which, if the Churches were not engaged in it, would be carried out directly by the state.

We think it right in principle-there was no real argument about it on Second Reading-that people should be able to raise convention points in respect of the actions of the Churches in those areas on the same basis as they will be able to in respect of the actions of other public authorities, however rarely such occasions may arise.

(…)

Mr. Andrew Rowe (Faversham and Mid-Kent) 

The Church has the power to marry in a way that the state recognises, but the choice to get married in a church is entirely voluntary. Does that not alter the case?

Mr. Straw 

The hon. Gentleman makes an interesting point. There was a time when one could get married only in church but, these days, marriage is a matter of civil law-it is the exercise of a public right. The Churches are standing in the stead of the state in arranging the ceremony of marriage, which is recognised not only in canon law, but in civil law. In that instance, the Church is performing a function not only for itself, but for civil society. [10]

70. We suggest that it does not seem at all unlikely that the step that allows a religious organisation to move from the exercise of one public function (solemnizing opposite sex marriages) to the exercise of another public function (solemnizing same-sex marriages), would also be regarded as the exercise of a public function, particularly since that step (opting-in) is itself provided for in legislation.

71. The idea of what constitutes a ‘public function’ in these circumstances is, however, notoriously uncertain. The Joint Committee on Human Rights stated the problem as follows:

‘We are concerned that, as the law stands, the only guidance that can be given on the important issue of whether a body should be considered a functional public authority for the purposes of the HRA is to seek further "specialist legal advice". It is currently impossible for the Government, or any other body, to provide comprehensive and accessible advice on the application of the Human Rights Act. We consider that this represents a serious failure to achieve the aspiration of a human rights culture in which Convention rights are secured for individuals without the need for formal legal proceedings or the involvement of legal advisers.’ [11]

72. We suggest, therefore, that there remains at least a significant risk that religious organisations that conduct legally-recognised opposite sex marriages could be regarded as exercising a ‘public function’ for the purposes of the Human Rights Act 1998. This could result in legal challenge to a decision not to ‘opt in’, thus limiting the breadth of the discretion of those religious organisations.

73. The Government argues that making a specific statement on the face of the Bill that religious authorities are not (for these purposes) exercising public functions would be unhelpfully confusing. The Secretary of State has written to us that: ‘To make a specific statement of the sort you have requested [that the Bill provide explicitly that a decision whether to opt-in is not a public function] might,…, risk creating doubt about whether other decisions made by religious organisations are also public functions.’ We disagree.

74. We consider that we have identified a significant threat; even if litigation may ultimately be successfully resisted, it would only be after significant costs had been incurred. Religious organisations should not be exposed to such costs, and more explicit protections are therefore needed. An amendment on the face of the Bill is necessary.

8. Clauses 3 and 4: The substantive issues under the Human Rights Act, and the European Convention

75. This leaves the question of the substantive issues under the Convention and the Human Rights Act to be considered. It is of vital importance that we clarify precisely what we consider the substantive legal risks are under the substantive provisions of the ECHR (that is, leaving aside the question of ‘public function’).

76. We should first be clear what we are not suggesting. We do not suggest that the European Court of Human Rights ‘would require a faith group to conduct same-sex marriages in breach of its own doctrine’ in the stark way in which the issue was framed in their Letter to The Times by Baroness Kennedy QC, Lord Lester QC, and Lord Pannick QC, and quoted to that effect by the Secretary of State in the House of Commons at Second Reading.

77. We agree with the thrust of that Letter, not least because a ‘faith group’ as such would not be before the European Court, since the Court only decides cases against Member States, not against private groups, and therefore the Court could not itself require a faith group to do anything.

78. That technical point aside, we agree more broadly that a challenge to a Member State’s decision to allow churches to continue not to conduct same-sex marriages would probably not be a breach of a positive obligation under Article 12, as things stand today, because the Court has held that there is no right to same sex marriage under Article 12.

79. However, the Secretary of State and the authors of the Letter to The Times give too much weight to the supposed finality of the European Court’s decision in Schalk and Kopf v Austria to support their conclusion that such an event is ‘inconceivable’. Although the decision of the Court was that there was no right under Article 12 to same sex marriage, the case developed the Court’s case law in at least two important respects.

80. First, marriage rights contained in Article 12 are now clearly not restricted to opposite-sex couples ‘in all circumstances’. The Court held:

‘Regard being had to Article 9 of the [EU] Charter [of Fundamental Rights], therefore, the Court would no longer consider that the right to marry enshrined in Article 12 must in all circumstances be limited to marriage between two persons of the opposite sex. Consequently, it cannot be said that Article 12 is inapplicable ... However, as matters stand, the question whether or not to allow same-sex marriage is left to regulation by the national law of the Contracting State’ (emphasis added). [12]

81. This is hardly a firm guarantee of future non-interference, as it appears to indicate that if there is a significant change in the European consensus on the matter, the legal interpretation may change. It is also the case that this area of litigation is likely to expand considerably in the near future. There are already at least two cases before the Court at the moment, in which the Court may develop the law further. [13]

82. Second, and in some ways of even more importance, the Court now recognizes that same-sex couples can establish family life, under Article 8 of the Convention. There is, therefore, the opportunity to argue that same sex marriages may come within the ambit of the right to family life, even if it does not come within the ambit of Article 12.

83. These points aside, there is a key reason for an increased risk under Article 12 read with Article 14 as regards the United Kingdom specifically. This is because, by changing the law on ‘marriage’ as such, the Bill opens up the prospect that a discrimination claim could succeed because the claimed discrimination would then come ‘within the ambit’ of Article 12.

84. In any event, we suggest that the stark way in which the Letter to The Times framed the issues under the Convention in relation to this Bill is not particularly helpful, and certainly not exhaustive. There are at least two substantive questions that arise.

85. The first issue is whether there is an arguable case that a religious authority exercising public functions in a discriminatory manner (as described above) would itself be acting unlawfully under the Convention in domestic litigation under the Human Rights Act.

86. The second issue is whether, in instituting the system of ‘protections’ in the Bill that explicitly permit religious authorities to discriminate, the United Kingdom would itself be acting unlawfully under the Convention in breach of its positive obligations by facilitating (and in the case of the Church of England, by requiring) discrimination by a third party, even if the activities of the religious authorities are not themselves regarded as involving the exercise of a public function.

87. We consider that there is an arguable case, a significant risk at least, that the protections provided by the Bill are incompatible with the Convention, under Article 8 alone, or (more likely) under Articles 8 and/or 12 read with Article 14, on the ground that the Bill adopts a discriminatory regime.

88. The Government has argued that the chance of a successful challenge to the protections accorded in the Bill under the ECHR is low on the basis that Article 9 (protecting freedom of religion) would protect the safeguards. But the recent judgments by a Chamber of the Court of Human Rights illustrate well that the right to freedom of thought, conscience and religion in Article 9 does not provide adequate protection when there is a clash between it and equality on the basis of sexual orientation. [14] The Government cannot therefore argue convincingly that the Court would necessarily accept the safeguards put in place to protect the position of religious organisations that decided not to opt-in, should a challenge be brought.

89. There is simply no precedent from the Court of Human Rights on the acceptability under the Convention of balancing religious protections with sexual orientation equality in the context of a same sex marriage law that has been introduced by a Member State. Previous case law has involved the question whether Member States must introduce same sex marriage, not how it legislates for same sex marriage once it has decided to introduce same sex marriage.

90. A similar issue arises in the context of abortion: the Court has never held that a Member State must introduce a law permitting abortion, but it has held in several cases that once a Member State introduces a law permitting abortion it must be applied in a fair way.

91. We also know from the case law that the Court often accords Article 9 rights relatively little weight, and accords a Member State a considerable margin of appreciation in deciding how to protect that right. Much greater weight is given to equality on the basis of sexual orientation, and the margin of appreciation is correspondingly significantly reduced. Differences in treatment based on sexual orientation can be justified only with very considerable difficulty, as indicated by the case law of the Court.

92. It is also important for Parliament to understand that, where challenges are made under the Human Rights Act in domestic courts, the margin of appreciation does not in any event apply, and therefore the issue of proportionality is likely to be directly addressed by the domestic court, with the uncertainty that such an assessment almost inevitably introduces. The proposed ‘protections’ may turn out not to be safeguards at all.

93. It is possible for Parliament to clarify that under the Human Rights Act the religious authorities exercising the discretion not to opt-in are not exercising a public function, and that would at least minimize the likelihood of litigation directed against the Church under that Act. If it fails to do so, then we have suggested that there is a significant risk of litigation directly against these religious authorities.

9. Clause 11: the effects of Clause 11(1) and (2) are unpredictable

94. Clause 11 of the Bill states:

‘(1) In the law of England and Wales, marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples. (2) The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect accordance with subsection (1).’

95. We consider that this is a piece of lazy drafting. We understand that the Government’s intention is to provide, as the default position, that same sex marriage is for all legal effects the same as marriage between a man and a woman. Officials have not, apparently, had the time to assess exactly what the precise effect of this, and so (rather than taking the time to go through all of the existing legal provisions relating to marriage, deciding which are to be changed and which are not on a statute by statute approach) the Government has come up with this blanket approach. No one seems clear exactly what the effect of this provision will be, and we suggest that this is not a sensible basis on which to legislate.

96. To take what might be thought to be a topical example: section 47 of the Criminal Justice Act 1925 abolished the common law presumption of coercion of a married woman by her husband, and substituted instead a statutory provision which provides that:

‘… on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.’

97. What is the effect of Clause 11 on this provision? It is unclear. In another part of the Bill, Schedule 3, paragraph 5 (which applies only to new legislation and therefore, technically, does not apply here), ‘husband’ is defined as including a man who is married to another man; and ‘wife’ includes a woman who is married to another woman. If this is the appropriate interpretation to apply to the 1925 Act, what is the effect? Does it mean that the defence provided in section 47 will apply to both parties of a marriage between two women, but neither party of a marriage between two men? Or does it mean that the defence will not apply at all in a same sex marriage?

98. This is simply an example of the difficulties that Clause 11 may give rise to, given the uncertainties that it creates. When we raised the problem of uncertainty with the Government, the response has been that we should identify where the effect of this provision might be problematic and that they would seek to introduce specific exceptions. We have responded that this is unacceptable, as it places the obligation and burden on us to identify all the problems ahead of time, and that we have neither the time nor the resources to do this.

99. We suggest that to incorporate such a broad provision is an inappropriate substitute for the detailed, rigorous, and extensive inquiry that should have been conducted before the legislation was introduced. Inadequate thought has been given to the repercussions of such a significant change, no doubt because of the rushed way in which the legislation was prepared.

100. This provision is likely to lead to costly litigation, the need for continuing ad hoc parliamentary engagement, or both. Given the constitutional importance of this proposed change of law, such a clause (with extensive and unknown consequences that may detrimentally affect a number of people and institutions) is unacceptable.

10. Schedule 1: Effect of the Bill on buildings shared for religious purposes

101. An issue arises over the status of buildings that are shared between Churches, one of which allows same-sex marriage, the other of which does not. Some may not want to have religious marriages between opposite sex couples conducted in buildings in which same-sex marriages are also conducted. Schedule 1 addresses the issue by requiring, in effect, that each of the Churches sharing such building may exercise a veto over the use of the building to conduct same-sex marriages. All sharers would be required to give consent to the registration of a building for the solemnization of same sex marriages before any one sharer could conduct such a marriage there. We consider that this is likely to may cause problems in practice, because it may result in informal arrangements being put under pressure, to the detriment of ecumenical dialogue and co-operation.

102. The Secretary of State has responded as follows: ‘We accept that a change of this sort brings tensions with it, even between well-intentioned people determined to overcome differences. But inevitably we must make some provision for shared premises …. We think that the approach we have taken is preferable to the alternative, which would be to allow any sharer to conduct marriage of same sex couples whatever the views of other sharers.’ The Secretary of State is, however, ‘confident that religious groups will work together, where these issues arise, to find ways of dealing with difficulties in particular situations.’

103. We are not reassured, unfortunately. We remain of the view that the regime set out in Schedule 1 may well cause some sharers not to wish to share premises with other organisations that are not in favour of same sex marriage.

11. Schedule 7, Part 2: Sex education in Catholic schools and the Secretary of State’s guidance

104. The change in the definition of marriage may have an adverse impact on schools because the Secretary of State is under a statutory duty to issue guidance on ‘the nature of marriage and its importance for family life and the bringing up of children’ under Section 403 of the Education Act 1996. The statutory change in the definition of marriage may therefore result in religious schools being compelled, or considering themselves under a compulsion, to teach a definition of marriage contrary to their own understanding and thus impact on previously accepted and protected religious freedoms.

105. This concern is reinforced by the possible effect of Clause 11(1) of the Bill, which provides, as we have seen that ‘In the law of England and Wales’ which will include section 403 of the Education Act 1996, ‘marriage has the same effect in relation to same sex couples as it has in relation to opposite sex couples.’ The ‘nature of marriage’ in section 403 must, therefore, be read subject to this new provision. This interpretation is strengthened by the provisions of Clause 11(2) that ‘The law of England and Wales (including all England and Wales legislation whenever passed or made) has effect accordance with subsection (1)’.

106. This appears to mean, therefore, that the duty on the Secretary of State to issue Guidance is effectively amended to require the Secretary of State to issue guidance on ‘the nature of marriage between opposite sex and same sex couples and its importance for family life and the bringing up of children.’ Section 403 appears to envisage, therefore, that the Guidance should not only ensure that schools describe the nature of marriage defined in this way, but also that schools should teach ‘the importance ….’ of marriage defined in this way, which may imply endorsement, or even promotion of this understanding of the meaning of marriage.

107. The Secretary of State has responded to these concerns as follows: ‘My officials are continuing to discuss this and other points with their counterparts at the Department for Education. We remain of the view that there is no need to provide additional protection as the Bill will not in itself make any change to the way teachers teach. But we do recognize, of course, that when providing factual information about marriage to pupils, schools will need to reflect the fact that marriage in England and Wales is open to both opposite sex and same sex couples. And as now, as part of sex and relationship education, schools will continue to teach pupils about the nature and importance of marriage for family life and bringing up children.’

108. Unfortunately, this response does not directly address our concerns regarding the question of the effect of the Bill on the Guidance that the Secretary of State issues. We have had separate discussions with officials in the Department for Education. From these, we understand that it is the Department’s view: that the statutory duty to provide Guidance on sex education and to teach the importance and nature of marriage will continue; that the Department does not consider that there is anything in the Bill that will require a change to the existing Guidance issued in 2000; and that this Guidance will continue with a broad remit – the Government will not stipulate the detail of what schools are expected to teach.

109. We welcome these assurances, and we would be grateful if the Secretary of State could confirm that these also reflect her understanding of the Government’s position. We consider, however, that it would nevertheless be important to address two different concerns on the face of the Bill, the first relating to the effects of the Bill on the existing Guidance, the second relating to future Guidance.

110. First, we are concerned that it be made clear that in discharging their functions regarding sex education, governing bodies and head teachers must not only have regard to the Secretary of State's guidance, but also to the character and designation of the school, as is implied in the reassurances provided by the Department for Education. We want to ensure that the existing Guidance is not interpreted in the way we fear.

111. This is not, however, the full extent of our concerns. We are also concerned, second, how a future Secretary of State might see his or her responsibility when issuing Guidance, and attempt to lay down the content of the curriculum in the way we fear. We consider it vital, therefore that the Bill be amended to prevent this Guidance from requiring that teaching must promote or endorse an understanding of the nature of marriage, where that is contrary to the character and designation of the school.

112. In addition, we have raised concerns about certain interest groups using any new legislation to challenge schools with a religious character. In discussions with the Department for Education, we were assured that the Government will be helpful in making clear that harassment of religious organisations in this way would not be acceptable, that that this will be led by the Government Equality Office. We look forward to this, and ask the Secretary of State to state publicly that this is the Government’s position, and to issue a statement to this effect.

12. Protection against ‘the threat of litigation’

113. We noted above that we place considerable importance on the Government’s commitment to ‘ensure that protections are in place for religious bodies who do not want to perform same-sex marriages, not just from successful legal claims, but from the threat of litigation’ (emphasis added). We understand that this is no idle promise, but a substantive commitment. The reason is clear. As the Government itself has itself recently recognized, [15] judicial review ‘comes at a substantial cost’ to respondents, including the ‘effort of defending the legal proceedings’, and the potentially ‘negative effect on decision makers,’ sometimes leading decision makers ‘to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge’.

114. In light of the Government’s commitment to ensure protections are put in place from ‘ the risk of litigation’ , we look forward to hearing the Government’s proposals as to how it intends to meet this commitment. We ask that serious consideration be given to indemnifying religious authorities in relation to any exposure to  legal costs  and  expenses incurred in the course of legal proceedings brought against them in their capacity as religious authorities exercising the power to opt-in or opt-out of same sex marriage provision.

III. INDIVIDUAL FREEDOM OF RELIGION

13. Clause 2(4): the protection for individuals against ‘compulsion’ to conduct same-sex marriages is too limited

115. Clause 2(4) seeks to allow individuals connected to a religious organisation which has opted-in to same sex marriages to refuse to conduct or be present at a same sex marriage ceremony. This has the potential to generate conflict and the religious freedom of individuals will (under the Bill) be accorded greater weight than the institutional autonomy of religious organisations. Were this protection to be accorded to individuals outside the religious sector as well, we consider that this interference would be justified. The fact that this is directed only at religious organisations is disturbing.

116. It is unclear why the protection proposed for those with conscientious objections to same sex marriage only applies to protect clergy or others within churches whose relevant governing body has opted-in to conduct same-sex marriages from being obliged themselves to conduct such a marriage. Clause 2(4)(a) provides explicitly that the protections do not extend to include ‘a registrar, a superintendent registrar or the Registrar General’. The government thus seeks to protect individuals from being ‘compelled’ to conduct same sex marriages even if their religious organisations have opted-in; but it has failed to protect individuals in other circumstances, where the state is involved.

117. We suggest that carefully tailored protections are needed for individuals who have a conscientious objection to same sex marriage in other contexts, in particular in the context of registrars who have a conscientious objection to conducting same-sex civil marriages. Suitable protection should be accorded to those working in the religious and public sectors. Individuals should be able reasonably to excuse themselves from activities that relate to same sex marriage without fear of being reprimanded or losing their jobs, as is currently the case of abortion.

14. Schedule 7, Part 2: Equality law, employment law, and teachers’ freedom of expression

118. We consider that there is a danger that teachers will be limited in their freedom of expression both inside and outside school as far as discussion of same sex marriage is concerned. It is imperative that freedom of expression and the freedom of thought, conscience and religion, is not inappropriately limited, when individuals are teaching, or where teachers publicly express dissenting views in other contexts regarding same sex marriage.

119. We fear that criticism of same-sex marriage by teachers in the school context could be considered to be unlawful discrimination based on sexual orientation. The problem is that even though a claim for ‘harassment’ is excluded in the schools context, so far as sexual orientation is concerned, claims for ‘discrimination’ are not. By analogy with the judicial interpretation of ‘discrimination on the grounds of sex’ as including some conduct that would also fall under ‘harassment’, [16] the use of offensive language may be held to amount to sexual orientation discrimination. Also, under EU law, the Court of Justice has held that, in some circumstances, offensive statements may amount to discrimination. [17]  

120. We further consider that the practical effect of the recent decision in Smith v Stafford Housing Trust [18] means that it is also be necessary to include a similar amendment to ensure that a teacher would not be disciplined, dismissed, or otherwise suffer a disadvantage due to voicing such criticisms.

121. The Secretary of State has responded to these concerns as follows: ‘Our clear understanding is that discussion or criticism of same sex marriage would not be ‘of itself’ discrimination under the current law. This would only happen if the discussion or criticism took place in an inappropriate manner or context which resulted in discrimination against, or a detriment to, a particular pupil or group of pupils. The same is true of discussion or criticism of same sex relationships generally. We believe the existing provisions within the Equality Act are sufficient to protect teachers. Nothing in the Bill affects people’s ability to hold and express their belief that marriage should be between a man and a woman. Teachers are perfectly entitled to give their own view, or that of their faith, in appropriate context and in a balanced and respectful way. We therefore do not think an amendment is necessary.’

122. We welcome this clarification of the views of the Secretary of State but we consider that she may be overly optimistic; the trend of the case law has been such as to create a chilling effect on teachers, and it is important to counter this explicitly. One of the ways in which this can best be achieved is by putting the Secretary of State’s reassurances on the face of the Bill, ensuring freedom of expression in the education context by protecting discussions of same sex marriages from being regarded as unlawful discrimination, or otherwise subject to dismissal or disciplinary proceedings.

15. Schedule 7, Part 2: Freedom of expression: Incitement to hatred

123. Individuals should be able reasonably to express views that relate to same sex marriage without fear of criminal prosecution under legislation criminalizing incitement to religious hatred and incitement to hatred on grounds of sexual orientation. In particular, we consider that appropriately tailored amendments should be introduced into sections 29J and 29JA of the Public Order Act 1986. These clauses provide a ‘beyond doubt’ statement to ensure that discussions related to sexual orientation (or religion or belief) do not in themselves constitute offences of hatred on grounds of sexual orientation (or religion or belief).

124. We suggest that it is appropriate to make clear that adopting a dissenting position on the acceptability of same sex marriage should also be protected in a similar way, ensuring that this would not constitute an offence. Freedom of expression is one of the hallmarks of a democratic society and it is central to achieving individual freedoms. It deserves to be protected explicitly.

125. The Secretary of State has responded as follows: ‘We are currently discussing with the Home Office and Ministry of Justice the possibility of amendments to the protection of freedom of expression clauses in section 29J and/or 29JA of the Public Order Act 1986 which you raised with us. We were not able to complete these discussions before introduction of the Bill. (…) We will continue these inter-departmental discussions as the Bill progresses.’ We welcome these discussions and look forward to learning the results.

16. Schedule 7, Part 2: Freedom of expression: Public Order Act

126. We also recommended that a similar ‘for the avoidance of doubt’ provision should be introduced into section 5 of the Public Order Act 1986. Section 5 provides, in relevant part:

(1) A person is guilty of an offence if he-

(a) uses threatening, abusive or insulting words or behaviour, or disorderly behaviour, or

(b) displays any writing, sign or other visible representation which is threatening, abusive or insulting,

within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby.

Our concern is that, particularly in light of the Hammond case, [19] there is a strong likelihood that the expression of views in public against same sex marriage might be held to be ‘insulting’ under the Act, with a consequential chilling effect on public speech.

127. We are aware that the Government has recently announced a decision to accept the Lord’s amendment to the Crime and Courts Bill that would remove the concept of ‘insult’ from that offence. The Secretary of State has indicated in her letter that, in her view, ‘this amendment should provide the additional protections you are seeking in that context. However, I would be grateful for your views and whether or not you think any further amendment is necessary.’

128. We consider that this may well be the case. We would prefer, however, that the issue be debated in Committee, in order to allow the Secretary of State to express her reasons more extensively.

Conclusion

129. We accept that the adverse effects of the Bill on religious freedom which we identify are, in the main, unintended and that the Government wishes to address our concerns in good faith. We look forward to working co-operatively with the Government and Parliament in seeking to resolve our concerns.

February 2013


[1] Impact Assessment, Marriage (Same Sex Couples) Bill, 17 January 2013 , page 5.

[2] Unfortunately, in the past, the Church has accepted Ministerial assurances that turned out to be worthless. The most important example of this was during the passage of the Human Rights Bill when detailed proposed amendments to protect freedom of religion were withdrawn on the assurances of the then Secretary of State that what became section 13 of the Act was sufficient protection. As is now well known, section 13 has become a dead letter in practice, due to the failure to provide sufficiently explicit and unambiguous guidance to the courts as to Parliament’s intentions. Mark Hill QC, Russell Sandberg, and Norman Doe, Religion and Law in the United Kingdom , at page 61: ‘ In practice, it seems that the section is a dead letter: section 13 hardly features in higher court judgments concerning freedom of religion .’

[2]

[3] In the JFS case [2009] UKSC 15 the Supreme Court held that a Jewish religious school could no longer admit pupils to the school on the basis of Orthodox Jewish religious principles ( halacha ) because these religious principles were held to be racially discriminatory, despite explicit exceptions in legislation protecting schools from being found to be discriminating on religious grounds.

[4] See, e.g . Lewis, ICLQ (2007) 56(2) 395 at 398 : ‘ the margin granted to States when restricting … consensual homosexual conduct in private (under Article 8) has been much narrower (and hence the intensity of scrutiny and level of protection afforded by the Court has been higher) than in cases involving religious manifestation and expression (under both Articles 9 and 10). ’

[5] Letter to the Editor, The Times , 4 February 2013 (by Baroness Kennedy, Lord Lester, and Lord Pannick). This letter is considered further below.

[5]

[6] One example must suffice: in the space of just six years the European Court of Human Rights has moved from considering prohibitions on adoption by an unmarried, homosexual individual not to be a violation of the Convention in Fretté v. France (26 Feb. 2002) to accepting that it was a violation in E.B. v. France (22 Jan. 2008).

[6]

[7] See, e.g. V v. C [2002] CP Rep 8 (Court of Appeal, Civil Division), in which the meaning of compulsion was considered in the context of the privilege against self-incrimination.

[8] The Courts have made it crystal clear, as Aikens LJ said in R (Brown) v Secretary of State for Work and Pensions [2009] PTSR 1506 that: ‘ the weight to b e given to the countervailing factors is a matter for the public authority concerned, rather then the court, unless the assessment by the public authority is unreasonable or irrational ... .’ [at para 82]. See, most recently, R (Coleman) v London Borough of Barnet Council and Another [2012] EWHC 3725 (Admin) for a review of the authorities.

[9] The Government has argued before the European Court of Human Rights , as recently as last September, in the Ladele case, that the decision of Islington Borough Council to prefer to follow one aspect of its equal opportunities policy (on sexual orientation) even where this conflicted with another aspect of its equal opportunities policy (on religion) was nevertheless entirely legitimate.

[10] Hansard , House of Commons, 20 May 1998, at cols 1017-18.

[11] Joint Committee on Human Rights , The Meaning of Public Authority under the Human Rights Act, HL Paper 77; HC 410 (Session, 2006-7), at page 47 .

[12] At paragraph 61.

[13] Chapin & Charpentier v. France (No. 40183/07) (communicated), and Fedotova & Shipitko v. Russia (No. 40792/10).

[14] Eweida and Others v United Kingdom ( Application nos. 4 8420/10, 59842/10, 51671/10 and 36516/10 ). A registrar (Ms. Ladele) was disciplined after she refused to carry out civil partnership ceremonies but she failed in her application to the ECtHR under Article 14 taken in conjunction with Article 9. Mr. McFarlane (a counsellor) was dismissed after colleagues became concerned that he would not provide sexual therapy to same sex couples given his religious beliefs. Mr. McFarlane failed in his application both under Article 9 and Article 14 in conjunction with Article 9.

[14]

[15] Ministry of Justice, Judicial Review: Proposals for Reform (December 2012), at paragraphs 34-35.

[16] Stewart v Cleveland Ltd  [1996] ICR 535, especially at page 542 at B-D.

[17] Case C-54/07,  Firma Feryn .

[18] [2012] EWHC 3221, especially at paragraphs 105-107.

[19] [2004] EWCH 69 (Admin).

Prepared 27th February 2013