Memorandum submitted by Church of England
Archbishops Council
1. The Archbishops' Council welcomes the
opportunity to respond to the Joint Committee's call for evidence
on the compatibility of the Equality Bill with the United Kingdom's
human rights obligations. Most of this paper is devoted to detailed
comments on a number of the particular questions that the Committee
has set out in its letter to the Solicitor-General dated 2 June
2009. But we begin with some broader reflections.
2. Since the introduction of the first anti-discrimination
legislation more than forty years ago, the Church of England has
been consistent in its support for the use of the law to combat
the manifestations of prejudice and to promote equality and fairness.
The law has a key role to play in countering discrimination. At
the declaratory level it makes clear what conduct society regards
as unacceptable. At the practical level it provides practical
redress for those subjected to detriment.
3. It seems to us that any assessment of
the compatibility of the provisions of equality legislation will
need to address the difficult and crucial area of conflicting
rights and how a proper balance should be struck. We have been
concerned at what has seemed in some recent debates to be a trend
towards regarding religion and belief as deserving of a lesser
priority in discrimination legislation than the other strands
where the law seeks to bring protection. 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, both as a matter of general principle and
as a matter of law.
4. In terms of general principle, the preservation
of religious freedom, including the right to manifest religious
belief in all its diversity, remains a cornerstone of an open,
liberal and tolerant society. Nor is religious equality achieved
by the elimination of expressions of religious belief in public
institutions such as schools or local authorities. This does not
amount to, or achieve, equal respect for different religious groups
and those of no religion; rather it amounts to an enforced secularism
that fails to respect religious belief at all.
5. In terms of law, under Article 9 of
the Human Rights Convention it is not only the right to hold a
particular religion or belief, but also the right to manifest
that religion or belief in worship, teaching, practice or observance,
either alone or in community with others, and in public as well
as in private, that is protected.
6. The right to manifest a religion or belief
is, of course, a qualified right under the Convention. But so
are most of the other rights protected by the Convention, including
the right to respect for a private and family life under Article
8. Where different, qualified rights come into competition with
one another it is not the case that one right will inevitably
be given precedence over another; rather, the enjoyment of the
rights in question has to be balanced. One does not begin with
the balance tilted in favour of any particular qualified right:
article 8 rights—which are those which most often compete
with article 9 rights—do not receive automatic priority.
Instead, the relative weight of each of the competing rights has
to be considered separately in the circumstances of the particular
situation and a proportionate balance struck.[120]
7. Section 13 of the Human Rights Act
emphasises the point that the right to freedom of thought, conscience
and religion will not, when exercised by a religious organisation,
readily yield to other rights protected by the Convention and
that it is not in any way subordinate to those other rights.
8. We turn now to a more detailed commentary
on a number of the questions raised by the Committee with the
Solicitor-General.
The exclusion of harassment on the grounds of
religion or belief and sexual orientation
9. We agree that it is desirable to protect
people from being placed in hostile, degrading, humiliating or
offensive environments. The law already provides specific protection
against harassment at work across all strands of discrimination
and we welcome that. In relation to race and gender protection
already exists or is planned in relation to a wider range of activity.
In relation both to harassment on grounds of religion or belief
and on grounds of sexual orientation there are, however, substantial
difficulties with achieving any satisfactory extension of the
law. There is a manifest need to strike a balance between potentially
conflicting rights and a clear difficulty in defining harassment
in a way that does not rest too heavily on the perception of the
person who feels something said or done to be offensive to them.
10. In our response to the consultation
prior to the introduction of the Bill we welcomed the Government's
assurance that it would only legislate to extend protection against
harassment on the grounds of religion or belief and sexual orientation
if to do so would be a proportionate response to a real problem
and would not result in unintended consequences such as limiting
the right to express a legitimate view or hold a different belief.
From the point of view of the Church, particular issues arise
in relation to harassment on the grounds of religion and belief,
and sexual orientation.
11. We also raised concerns that the consultation
paper envisaged the possibility of extending protection against
harassment to the ground of sexual orientation but not to religion
and belief; or alternatively of extending only a cut-down form
of harassment protection to religion and belief. In paragraphs
3-7 above we draw attention to the falsity of the argument
that results in lesser protection being accorded to religion and
belief than to other protected grounds. 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.
12. Turning to more specific matters, in
relation to religion and belief, it is inherent in the very existence
of different religions that the followers of one religion may
find it necessary—in order to expound the tenets of their
own religion—to question and criticise, whether explicitly
or by implication, the beliefs and practices of other religions.
Such questioning and criticism is a legitimate exercise of the
rights to manifest religious belief and freedom of expression.
13. Very similar considerations apply in
relation to commending the faith to those of no religion or who
hold no beliefs. Evangelism amounts to the manifestation of religious
belief on the part of those carrying out that activity (particularly
in the case of "missionary" religions such as Christianity
and Islam, for which the propagation of their beliefs to others
is an obligation rather than merely an option).
14. If—contrary to what is currently
contained in the Bill—provision were to be made in relation
to harassment on the grounds of religion or belief, it would not
be sufficient to except anything done in relation to the provision
of goods, facilities and services by a religious organisation
or a minister of religion. That would cover activity in the context
of religious services, such as preaching, and scriptural reading
and exegesis, as well as other occasions when teaching and instruction
is offered. But it is absolutely fundamental that the right to
manifest religious belief through evangelism/proselytising extends
to individual followers of the relevant religion.
15. Significantly, article 9 of the
Human Rights Convention recognises that by providing that the
right to manifest a religion may be either alone or in community
with others. The exercise of that right—either by individuals
or organisations—should not be inhibited by the possibility
that some may claim that this constitutes harassment.
16. In the context of harassment on grounds
of religion and belief, we are also concerned about the position
of charities which have a religious ethos. We believe that there
is a real risk of challenges to the use of religious practices
(such as grace before meals) or of religious symbols (such as
crosses) on the basis that they involve "harassment"
of the users of their services.
17. Such risk arises in part from the widely
drawn definition of "harassment" currently employed
in British equality legislation, including as it does not only
"creating an intimidating, hostile, degrading, humiliating
or offensive environment" for the person making the complaint
but also "violating [their] dignity"—a broad and
uncertain concept, the parameters of which are far from clear.
18. That risk is increased by the emphasis
placed on the perception of the claimant in cases where intention
is not established and the court or tribunal has to consider the
effect of the conduct in question. For that reason we are
of the view that employing a definition of harassment that removed
any reference to creating an offensive environment or by
requiring that conduct must both violate the dignity of
a person and create and intimidating or hostile environment
would not answer the objections we have to extending harassment
provisions to religion or belief and sexual orientation.
19. It is true that someone's perception
that they are the subject of harassment is not in itself sufficient
for a claim to be guaranteed success: there is an objective test
of reasonableness. But whether that test is satisfied can only
finally be determined by a tribunal or court in an individual
case. On these emotive issues there is therefore much potential
for claims to be made against religious organisations, with all
the implications that has in terms of the need to commit time
and resources to defending them.
20. For these reasons we believe that there
is a real risk that an extension of the law would encourage litigation
in a sensitive area and that that cannot be in the public interest
and that insofar as competing rights are in play here, extending
the law on harassment on the ground of religion and belief would
potentially have such a great inhibiting effect upon the manifestation
of religion or belief that it could not be said that such an extension
would strike a proportionate balance between the competing rights
in question.
21. With regard to sexual orientation and
sexual activity between persons of the same sex, the Church's
long-standing teaching is well known. While a range of views on
the subject is to be found among members of the Church of England,
the Church in its formal statements continues to maintain the
traditional view as do a substantial proportion of its members.
We seriously question whether there is a practical need for further
anti-harassment legislation here given the other substantial protection
that exists; for example, under the Protection from Harassment
Act 1997 in relation to harassment in general, and under
Part 5 of the Bill in relation to harassment in the workplace.
22. Indeed there will be many people of
faith who would perceive an extension of the law in this area
as essentially an attempt to harass them for having views on sexual
morality which others find objectionable. However wrong this perception
might be it does illustrate the difficulty of seeking to extend
the law ever further into these controverted areas when key concepts
such as "harassment" have much more elastic definitions
than the term implies.
23. Were Parliament to take a different
view, it would be crucial to ensure that a religion's followers
(and not just religious organisations and ministers of religion)
continued to be able to express the views of their faith about
homosexual conduct, including talking about the need as they saw
it for people to lead lives consistent with the teaching of the
Church. To deny Christians (and followers of other faiths which
take a similar view) such a right would amount to an unjustified
interference with the right to manifest religious belief. It would,
wrongly, suggest that the right to manifest a particular sexual
orientation was in effect a superior right to the right to manifest
a religion or belief.
24. To make a perhaps rather obvious point,
the fact that a homosexual person might hear the expression of
views about homosexual conduct which they found uncomfortable
would manifestly not prevent that person from behaving, in the
context of the right to private life, as they saw fit whereas
legislating in such a way that the expression of religious teaching
about same-sex relationships could not in many contexts be lawfully
expressed would amount to denying a follower of that religion
the right to manifest that aspect of their religious belief at
all. Such a position would amount to a failure to balance competing
rights in a proportionate manner.
25. We do not consider that article 14 of
the Convention presents an obstacle to excluding the grounds of
religion or belief and sexual orientation from the protection
from harassment that is afforded in relation to other protected
characteristics under the Bill. Primarily, this is because in
considering whether there has been a violation of article 14 it
is necessary to consider whether there has been discrimination
on the ground of a person's membership of a particular class;
ie that there has been "a failure to treat like cases alike".[121]
26. The non-extension of protection against
harassment to the grounds of religion and belief and sexual orientation
does not amount to failing to treat like cases alike. Protection
against harassment is simply not extended at all to these two
grounds: so that neither a Christian nor an atheist nor a person
of any other religion or belief, or of none, can seek protection
from harassment under the Bill on grounds of religion or belief.
There is, therefore, no discrimination on the ground of religion
in the application of the harassment provisions.
27. Likewise the Bill does not extend protection
against harassment either to heterosexual or homosexual people
on the ground of their sexual orientation. There is, therefore,
no discrimination on grounds of sexual orientation in relation
to the coverage of the Bill's protection against harassment.
28. The harassment provisions contained
in the Bill amount to the conferring of protection over and above
the right to private life contained in article 8. Where a state
chooses to afford additional rights or protection in this
way, the fact that that additional protection is limited in its
scope—ie the field in which it operates—does not amount
to a breach of article 14.[122]
29. In any event, the principle of equality
of treatment under article 14 is violated only if there is
no reasonable and objective justification for the distinction.[123]
For the detailed reasons set out above we do not consider that
the Government would have any difficulty in establishing reasonable
and objective justification for the exclusion of harassment on
grounds of religion or belief and sexual orientation on the basis
that it amounted to a proportionate response to the need for balancing
competing rights. Both religion and sexual orientation have been
identified by Strasbourg case law as classifications in respect
of which weighty reasons are required to justify a difference
in treatment for the purposes of article 14. In relation to the
present question they are both in the balance, one against the
other and the outcome of the balancing exercise should therefore
be determined by the question of the proportionality of treating
these protected characteristics differently from others in the
Bill in the light of the effect that including or excluding them
would have. In the light of what is said above about the effect
that extending harassment provisions to the ground of sexual orientation
would have in relation to the right to manifest religious belief,
the exclusion of this ground from the harassment provisions amounts
to a proportionate response to a legitimate aim.
Occupational requirements
30. Questions 37 and 38 of the
Committee's letter to the Solicitor-General raise issues about
the interrelationship between paragraphs 2 and 3 of
Schedule 9 (Work: exceptions—Occupational requirements).
The Committee asks whether the Government considers that the application
of a genuine occupational requirement under paragraph 3 will,
of itself, "permit employers in certain circumstances to
make adherence to religious doctrine in their lifestyles and personal
relationships a genuine occupational requirement for a particular
post". It also asks why it is justified to give employers
greater scope through the provisions of paragraph 3 to impose
a requirement to be of a particular religion in circumstances
where it could not impose a requirement in relation to sexual
orientation under paragraph 2.
31. As paragraph 3 is drafted it does
not appear to us that it is apt to cover the application of requirements
as to personal conduct as distinct from the narrower question
of a requirement simply to be of a particular religion. However,
it seems to us both logical and necessary that in the case of
a post in respect of which it is legitimate to impose a requirement
that the holder be of a particular religion, it should
equally be possible to impose a requirement that the holder of
the post should not engage in conduct contrary to the tenets of
that religion.
32. Indeed it is only in respect of posts
that are subject to a requirement to be of a particular religion
or belief that the Church would ever wish to impose any of the
requirements listed in paragraph 2(4). It is our view that the
scope of the exception contained in paragraph 2 should simply
be expressed to apply to posts in respect of which a requirement
to be of a particular religion was (lawfully) applied (rather
than to posts that involved "employment for the purposes
of an organised religion" as defined in that paragraph).
Employment in religious schools
33. At question 54 of its letter the
Committee asks why specific exceptions are required for employment
in faith schools when the Bill makes more general provision for
genuine occupational requirements in relation to religion or belief.
34. The exception in paragraph 3 of
Schedule 9 is narrower than what is permitted under section
60 of the School Standards and Framework Act 1998 (and
therefore under the exception contained in Schedule 22 paragraph
4 of the Bill). Under paragraph 3, it would have to be shown
that being of a particular religion was a genuine occupational
requirement for the particular post and that applying the requirement
was proportionate way of meeting a legitimate aim. The GOR might
be applicable to RE teachers and those with specific pastoral
roles but would not be available in respect of the appointments
of teachers generally.
35. By contrast, section 60(5) of the 1998 Act
is not concerned with the nature or context of the particular
employment; it simply permits a voluntary aided school to give
preference to teachers who are likely to support and promote the
school's religious ethos. That seems to us not only desirable
but also necessary if the Christian ethos of church schools is
to be maintained and promoted.
36. We cannot see how it could be argued
that the exception contained in paragraph 4 of Schedule 22 to
the Bill was not compatible with articles 9 and 14 of
the Convention. The effect of that exception is not such as to
interfere with anyone's right to freedom of thought, conscience
and religion. It simply allows certain schools to give preference
in the making of certain appointments to persons who are likely
to support the school's religious ethos; it is a matter of personal
choice for individuals as to whether they apply for positions
in voluntary aided schools.
37. The fact that there are limits to the
scope of the provisions in the Bill that prohibit discrimination
in the context of employment on the grounds of religion and belief,
and that the Bill's provisions do not cover all cases of such
discrimination, does not mean that those provisions interfere
with Article 9 rights.[124]
38. As to article 14, the exception contained
in paragraph 4 of Schedule 22 to the Bill has to be
seen in the context of Part 5 of the Bill. The provisions
of Part 5 afford a specific form of statutory remedy, over
and above the right to freedom of religion protected by article
9 of the Convention, to individuals who suffer discrimination
on grounds of religion or belief in the employment field. When
a state provides such additional protection, while it cannot discriminate
in terms of the classes of persons to whom that additional protection
is provided (for example to Christians but not to Jews), it is
open to the state to choose the extent of the field within
which that additional protection is extended.
39. The fact that the legislation places
a limit on the field in which those additional rights operate—ie
by not extending the protection to the totality of the employment
field—does not amount to an interference with article 14 rights
because it does not amount to conferring rights on some persons
but not on others on the basis of any of the grounds mentioned
in article 14 (or on any equivalent grounds recognised as
being covered by article 14). The Bill as drafted does not, therefore,
produce any discriminatory treatment on grounds of religion in
the enjoyment of rights falling within the ambit of the Convention.[125]
120 Re S (A Child) (Identification) [2005] 1 AC
593, para. 17, per Lord Steyn. Back
121
Per Lord Hoffmann in R (Carson ) v Secretary of State for Work
and Pensions [2006] 1 AC 173, at paragraph 14. Back
122
As to this principle, see further below in the discussion relating
to employment in religious schools. Back
123
Belgian Linguistics Case (No 2) (1986) 1 EHRR 252,
2824, para. 10. Back
124
Cf. R(Amicus) v Secretary of State for Trade and Industry &
ors. [2004] EWHC 860 (Admin) at paragraphs 184-185 Back
125
Cf. ibid. at paragraphs 198-199. It would be different if the
exception applied only in the case of schools of a particular
religion or denomination as then the legislation would be discriminatory
as between persons according to their religion. But that is not
the case under the Bil. Back
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