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17 July 2014

Lady Hale speaks up for accommodation

Lady Hale speaks up for accommodation

A Daily Telegraph editorial recently acknowledged that with the increasing number of incidents involving Christians facing legal punishment for standing up for their beliefs "it is obvious that there is a growing conflict between religious freedoms and equalities legislation, and that a new balance has to be struck."

The comment was provoked by a significant speech made by Lady Hale, Deputy President of the Supreme Court, to the Law Society of Ireland in June in which she questioned whether existing law has got the balance right between religion and belief rights and other human rights. She specifically asked "should we be developing, in both human rights and EU law, an explicit requirement upon the providers of employment, goods and services to make reasonable accommodation for the manifestation of religious and other beliefs?"

Her remarks have been seized upon and given media prominence not just because she is one of the UK's most senior judges but because she was a member of the five-judge panel of the Supreme Court who dismissed an appeal by Peter and Hazelmary Bull after they were successfully sued by gay couple Martyn Hall and Steven Preddy over their policy of only allowing married couples to share a double bed. In fact, Baroness Hale cast the deciding vote that found against the Bulls.

The Supreme Court ruled that Peter and Hazelmary Bull had discriminated against the gay couple even though they had throughout their lives applied a published rule that unmarried guests had to sleep apart. At the time Lady Hale admitted that the Bulls had been overtaken by fundamental and previously unthinkable changes to the law and societal norms which forced the Bulls into a predicament not of their making. This of course raises a major question regarding the extent to which the law must be changed to protect employers, employees and service providers who discover that what they have been practising happily all their lives is suddenly rendered illegal by the imposition of so-called 'equalities' legislation.

The Bulls also had cause to be concerned and perplexed by the role of the Equality and Human Rights Commission who instead of defending their religion and belief rights actually joined in the legal action against them. Indeed, it is remarkable that the case was treated by both the gay rights movement and the Equality and Human Rights Commission as a campaign designed to make the Bulls an object lesson with all attempts by the Bulls to offer redress and reach amicable settlement rejected out of hand. The Bulls understandably questioned why their right to exercise their religious beliefs was being set –disadvantageously - against the right of Hall and Preddy not to be discriminated against on the grounds of their sexual orientation. The answer given –namely that once an activity is deemed commercial religious protections for some reason should be lost –is not a sufficient answer. The recent Hobby Lobby case in the USA has graphically illustrated exactly why this is such a controversial question.

This is precisely why Lady Hale's apparent change of mind which was accompanied by the unusual decision of the Supreme Court- perhaps as something of a belated compensatory act –not to award costs against the Bulls is so important. Lady Hale was simply pursuing earlier comments made at Yale Law School in March when she admitted that "it is not difficult to see why the Christians feel that their religious beliefs are not being sufficiently respected" and raised the valid point that "instead of all the technicalities which EU law has produced, would it not be a great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others?" In her Ireland speech she went on to highlight along with the Bulls case that of Christian registrar Lillian Ladele, who lost her job because of her beliefs about marriage in a decision upheld by a majority decision in the European Court of Human Rights. Significantly, Lady Hale cited the strong dissenting opinion of two judges in Strasbourg who argued that Lilian Ladele deserved protection under the human right of freedom of conscience. Raising the need for the law to do more to address the current imbalance between competing rights she once again emphasized the potential of developing the legal concept of reasonable accommodation suggesting "I am not sure that our law has yet found a reasonable accommodation of all these different strands. The story has just begun."

We know that a major chord has been struck, not least because pressure groups like the National Secular Society have already begun campaigning against what they fear are the implications of Lady Hale's balancing remarks. However, as we write there is news of another case supported by the Equality Commission for Northern Ireland against Christian bakers who have refused to bake a cake advocating same-sex marriage. As the Daily Telegraph concludes "Britain does need to have a conversation about this subject and it is not something that we should shy away from –especially not for fear of falling foul of the unwritten laws of political correctness. A Britain that is comfortably modern and diverse has to ensure that there is both equality and a respectful tolerance for differences of opinion. Otherwise, those differences could be twisted into bitter resentments."