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20 September 2012

Equality v Human Rights

Equality v Human Rights

Clashes between the law and religion are rarely out of the news as the recent cases of Christians in the European Court of Human Rights demonstrate.

It is therefore timely that a new report for the Equality and Human Rights Commission (EHRC) by researchers at the London Metropolitan University has just been published which seeks to investigate the associated controversies.[1]

The report was largely based on interviews with around 100 religion or belief groups (including the Evangelical Alliance), human rights and equality organizations, employers, public service staff, academics and lawyers. It throws up the very differing perceptions and understandings of the law by different groups whilst seeking to clarify the actual law and its practical application in the workplace and in public services.

The courts and their judgements have been criticised widely, including in parliament, for using equality law itself as a blunt instrument for marginalising Christians in the UK and for exhibiting anti-Christian prejudice. Especially contentious are cases involving freedom of conscience for religious believers who may refuse to become morally complicit in the delivery of certain public services which they believe compromises their faith. In particular, there have been many claims that religion and belief rights rank disadvantageously low in an emerging hierarchy of rights in which sexual orientation rights are considered more important. There have also been a number of controversial cases involving the wearing of religious symbols in the workplace. In addition, the courts have been strongly criticised for interfering ignorantly with religious faith by taking it upon themselves to pronounce on what is and is not central to Christian belief.

The report has experienced considerable delay before being published which suggests that not only did the researchers face difficulty in reaching agreement on a text acceptable to the EHRC but that the EHRC were themselves extremely sensitive to the considerable criticism of their role which is a feature of the report and at a time when government has been questioning their competence.

The report dwells on the problems surrounding the various lines of argument used when addressing religion and belief from both faith and secular perspectives. It seriously questions how far legal judgments can be viewed as reliable indicators of the place of religion or belief in public life. Because cases are usually highly context-specific, they do not necessarily represent universal experience. And because human rights law relies heavily on relatively subjective principles such as proportionality the outcome of apparently similar cases may appear contradictory. How, for example, can one employment tribunal decide that a Muslim did not suffer direct discrimination when his employer refused to let him leave work early on Fridays while another held that a Christian did suffer discrimination when expected to work on Sundays? The answer lies in the different contexts and it is not possible to generalise from specific cases. But the public perception of the outcomes is often one of consequent confusion and unfairness.

The report also demonstrates how the law is actually quite limited in its capacity to address complex questions of religious multiculturalism and social identity and can easily end up being used as a blunt instrument. It proposes the idea that a better option could be to pursue alternatives to emotive and divisive legal conflict such as mediation and good relations aimed at reasonable accommodation for all, rather than competing battles for legal recognition and protection at the expense of others. This suggests that it is crucial to establish rules of engagement for approaching public discussion or negotiation of differences which include a requirement to respect the perspective of others, however incomprehensible or even offensive this might appear to some.

The report concludes that the most productive level of engagement for those who wish to advance debate, practice and understanding in relation to religion or belief is on the ‘front line’ of decision-making – involving policy-makers, practitioners and workplace managers. Employers need practical guidance, not least in addressing current widespread ignorance and confusion about religion and belief as well as equality law. In the longer term, the report suggests that an approach based on human rights is likely to be more satisfactory than one based solely or mainly on equality. The equality focus tends to produce a narrow view on legal compliance based on single – and sometimes competing – characteristics, and too readily ends up in expensive conflict in court leading to increased and unresolved deep-seated social divisions. Human rights, on the other hand, can provide a framework for fair, tolerant, transparent and proportionate decision-making and can encourage solutions that involve holistic focus on individual flourishing for everyone, regardless of diversity.

The EHRC has announced a series of forthcoming dialogues with key stakeholders based on the report.[2]

[1] Religion or belief, equality and human rights in England and Wales available here.

[2] For details of how to be involved click here.