Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

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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