Lord Phillips of Worth Matravers, founding President of the Supreme Court, gave a lecture at KCL Law School last Tuesday entitled European Human Rights – A force for good or a threat to democracy? On 13 June in Dublin the current Vice-President of the Court, Lady Hale, gave the Annual Human Rights Lecture at the Law Society of Ireland. the text of the lecture, entitled Freedom of Religion and Belief, was posted on the Supreme Court website late last week. Unsurprisingly, both merit very careful reading.

Lord Phillips’s view

Lord Phillips was not entirely uncritical of some of the judgments from Strasbourg which, he believes, have allowed an insufficient margin of appreciation to domestic jurisdictions; but he is broadly supportive of the Convention and the Court. He points out that the ECHR was a reaction against the horrific human rights abuses that took place before and during the Second World War, and afterwards within the newly-formed Communist bloc. The UK took the lead in promoting and signing the Convention primarily because the Government of the day believed that the it was needed to prevent abuses of human rights by others. However:

“… we have, on occasion, rightly been found wanting by the Strasbourg Court – by way of example in denying basic rights to prisoners, in discriminating against homosexuals, in detention of terrorist suspects without trial, in permitting decisions to be founded on evidence not shown to the losing party. But these shortcomings have been insignificant compared to the violations of human rights of which other members of the Council of Europe have been held guilty by Strasbourg”.

He concludes that “… when the countries of the Council of Europe are looked at as a whole, the influence of the Strasbourg Court has been beneficial … Europe needs the Convention and Europe needs the Court”.

Lady Hale and accommodating religion

Lady Hale’s lecture was in some ways rather more controversial. She pointed to the tensions revealed by Paul Weller and his colleagues between the conclusion that “over the past decade there has, in general, been a reduction in the reported experience of unfair treatment on the basis of religion or belief” [Weller et al: Religion or Belief, Discrimination and Equality (Bloomsbury 2013) p 208] and the sense of marginalisation felt by some Christians, who “spoke of what they felt was a comparatively fairer treatment of other religion or belief groups” – while non-religious groups felt that Christianity and religion in general was still unfairly privileged [p 210].

She pointed to the problem that, under EU law, though there is a defence of justification against an allegation of indirect  discrimination, there is no such general defence of in the case of direct discrimination:

“Broadly speaking, it is direct discrimination if the criterion you use to single someone out for less favourable treatment is their religion or belief. ‘No Jews here’ would be the obvious example. It is indirect discrimination if you employ a criterion which is neutral on its face, but in fact puts members of a particular group at a disadvantage because it is less easy for them to comply with it. Requiring all employees to work on Friday afternoons would be an example”.

She suggested that it was sometimes a difficult distinction to draw: In  Bull & Anor v Hall & Anor [2013] UKSC 73

“… the Court of Appeal held unanimously [[2012] EWCA Civ 83] that what the hotel had done was direct discrimination (and the civil partnership made no difference); whereas in the Supreme Court we would all have held it to be indirect discrimination, were it not for the civil partnership; three of us thought that this did make a difference. The hotel were denying a marriage bed to a couple who were to be regarded in UK law as in the same situation as a married couple: they were doing that precisely because the couple were not heterosexual, in other words because of their sexual orientation”.

Commenting on the judgment of the UKSC she asks: “I wonder whether that is something of a relief or whether we would be better off with a more nuanced approach?”.

Noting the judgment in Eweida and Ors v United Kingdom [2013] ECHR 37, she points out that all four of the conjoined appeals had originally been discrimination claims rather than claims under the Human Rights Act 1998 and that “… we are in the territory of fair balance, between the interests of the individual and the community at large, and between the competing rights of individuals”. Most complaints are likely to be of indirect discrimination: not that the employer had treated the claimants badly because they were Christians but because the employer had applied a rule or practice that affect them adversely because they were Christians:

“So 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? And even vice versa?”.

She concludes on the point as follows:

“… if the law is going to protect freedom of religion and belief it has to accept that all religions and beliefs and none are equal. It cannot realistically inquire into the validity or importance of those beliefs, or any particular manifestation of them, as long as they are genuinely held. It then has to work out how far it should go in making special provisions or exceptions for particular beliefs, how far it should require the providers of employments, goods and services to accommodate them, and how far it should allow for a ‘conscience clause’, either to the providers, as argued by the hotel keepers in Bull v Hall, or to employees, as suggested by the dissenting minority in Ladele. I am not sure that our law has yet found a reasonable accommodation of all these different strands”.

A conscience clause?

Writing in the Telegraph, John Bingham interpreted Lady Hale’s speech as

“… arguing that Christians might be able to invoke a special ‘conscience clause’, protecting their right to refuse to do things which went against their beliefs even if it clashed with equality laws”.

I’m not sure that that is not an oversimplification. Lady Hale recognises that the situation is extremely complex – and she doesn’t refer specifically to Christians. In fact, she argues in support of the idea from the dissenting judgment in Francesco Sessa v Italy 28790/08 [2012] ECHR, in which a Jewish advocate complained about the Italian court’s refusal to adjourn his case to a date  that did not clash with Yom Kippur and Sukkot.

Peter Lynas comments in Public Theology that Lady Hale observes that

“… it would be indirect discrimination (against Muslims presumably) to require all employees to work on a Friday afternoon. These comments suggest she would be sympathetic to the Mba case where a Christian has been required to work on Sunday”.

I suspect that it is even more complicated than that. Given that Shabbat starts at sunset on Friday, compulsory working on Friday afternoons would cause serious problems for observant Jews in winter-time – particularly for those living north of the Trent – and Jews, unlike Muslims and Christians, are a racial group for the purposes of race discrimination. Presumably no-one would argue that not to work during the Sabbath is not a “core belief” for observant Jews; but there are differing views as to whether or not it is a “core belief” for Christians. And presumably no “conscience clause” for believers, however carefully formulated, could simply take precedence over (eg) disability or racial identity. Judges would have to balance the conscientious objections of believers with the competing rights of others – which is pretty much what they do already.

And as Adam Wagner has just reminded us on Twitter, the Equality and Human Rights Commission was going to intervene in Eweida & Ors and propose “reasonable accommodation” for religion and belief cases – then changed its mind.

So there is no quick fix for this (or even a slow one). As Lady Hale rightly concludes, “The story has just begun”.