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Religion, the Rule of Law and Discrimination

Published online by Cambridge University Press:  13 August 2014

Terence Etherton
Terence Etherton*
Affiliation:
Chancellor of the High Court of England and Wales
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Abstract

Reconciling conflict between religious freedoms and non-religious human rights is a subject that has begun to affect many countries as they have become more liberal, multicultural and secular. The law relevant to the subject is currently developing at a fast pace, and is of particular interest in England and Wales given the historical position that Christianity has had within the establishment – the monarchy, Parliament and the law. This article charts the development of the law in these areas from an era of officially Protestant uniformity to the current plural and tolerant society. The fast pace of development, particularly since the end of the Second World War, is shown through examination of the development of the law in the fields of racial discrimination, discrimination on the grounds of sexuality, and religious freedom and discrimination. To all intents and purposes, the law has now become neutral towards religion and belief and provides an enlarged space where, subject only to legitimate interference for the protection of that freedom and the rule of law, all are free to adhere to their own faith and belief system.

Keywords

freedom of religiondiscriminationhuman rightsrule of law
Type
Articles
Information
Ecclesiastical Law Journal , Volume 16 , Issue 3 , September 2014 , pp. 265 - 282
Copyright
Copyright © Ecclesiastical Law Society 2014 

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References

2 For two very recent commentaries, see Wintemute, R, ‘Accommodating religious beliefs: harm, clothing or symbols, and refusals to serve others’, (2014) 77:2MLR 223–253CrossRefGoogle Scholar; McCrea, R, ‘Religion in the workplace: Eweida and Others v United Kingdom’, (2014) 77:2MLR 277–307CrossRefGoogle Scholar.

3 See, eg, Stychin, C, ‘Faith in the future: sexuality, religion and the public sphere’, (2009) 29 OJLS 729–755CrossRefGoogle Scholar.

4 See the recent masterly survey of Dingemans, J, Yeginsu, C, Cross, T and Masood, H, The Protections for Religious Rights: law and practice (Oxford, 2013)Google Scholar.

5 Until the enactment of the Succession to the Crown Act 2013 a person could not succeed to the crown or possess it if they married a Roman Catholic.

6 (1676) 1 Vent 293, 86 ER 189.

7 Radcliffe, Lord, The Law and its Compass (London, 1961)Google Scholar, p 16.

8 Julius, A, Trials of the Diaspora (Oxford, 2010)Google Scholar, p 128.

9 Note also that, although Jews (like Quakers) were exempt from the stipulations in the Clandestine Marriages Act 1753 (by section 18) as to the legal requirements for a valid marriage in England and Wales, that Act did not go so far as to declare their marriages valid.

10 De Costa v De Paz (1754) 2 Swans 532.

11 Ibid, at 252.

12 Blasphemy was an offence of strict liability: that is to say, the offence did not depend on the accused having an intent to blaspheme. It was sufficient for the prosecution to prove that what was said or written was intentional and blasphemous: Whitehouse v Lennon, Whitehouse v Gay News Ltd [1979] AC 617.

13 R v Chief Metropolitan Stipendiary Magistrate, Ex Parte Choudhury [1991] 1 QB 429.

14 Sections 12 and 13 of the Sexual Offences Act 1956.

15 (1883) 15 Cox CC 231 at 238.

16 [1917] AC 406.

17 This contained the statement: ‘Recognition of the inherent dignity and the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.’

18 I shall not comment on the International Covenant on Civil and Political Rights 1996, the UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981 or the European Union's Charter of Fundamental Rights because they have not separately played a significant part in the historical development of the relevant jurisprudence in England and Wales.

19 Mandla v Dowell Lee [1983] 2 AC 548 (concerning a Sikh); R(E) v Governing Body of JFS [2010] 2 AC 728 (concerning a Jewish faith school). As Albie Sachs has said, ‘Race and religion often go together’ (‘In praise of “fuzzy law”’, in Griffith-Jones, R (ed), Islam and English Law (Cambridge, 2013), pp 225–236CrossRefGoogle Scholar at p 228).

20 Professor David Feldman, for example, has pointed to the pluralism and multiculturalism that followed immigration to Britain, particularly from the Caribbean: ‘Why the English like turbans: multicultural politics in British history’, in Feldman, D and Lawrence, J, Structures and Transformations in Modern British History (Cambridge, 2011), pp 281–302CrossRefGoogle Scholar.

21 Monaghan, K, Equality Law (second edition, London 2013)Google Scholar, para 5.53. As noted above, however, by virtue of the definition of ‘racial grounds’ and ‘racial group’ in section 3(1) of the Race Relations Act 1976 as embracing colour, race, nationality or ethnic or national origins, the provisions of the Race Relations Acts extend far wider than black people: see Mandla v Dowell Lee.

22 The Convention itself may be seen as reflecting a particular polity, namely a secular liberal democracy constituted by popular elections, rule of law, pluralism in the political sphere and respect for public freedoms and human rights. See M Baderin, ‘An analysis of the relationship between shari'a and secular democracy and the compatibility of Islamic law with the European Convention on Human Rights’, in Griffith-Jones, Islam and English Law, pp 72–93 at p 81.

23 Article 9: ‘Freedom of thought, conscience and religion. (1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. (2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

24 (2005) 41 EHRR 8. See also R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, at para 15.

25 Williamson, at para 23. See also Lautsi v Italy (2012) 54 EHRR 3; Dingemans et al, Protections for Religious Rights, paras 3.19, 3.23. The courts have generally refused to evaluate the core tenets of particular beliefs. There should be noted the recent decision of the Court of Appeal in Mba v London Borough of Merton [2014] 1 All ER 1235, where the majority held that Article 9 made it irrelevant for the purposes of the proportionality assessment whether a belief – in that case the refusal of a Christian to work on a Sunday – was or was not ‘a core component of the Christian faith’ (per Elias LJ at para 34 et seq, with whom Vos LJ agreed (at para 39); Maurice Kay LJ reached the same conclusion but without resort to Article 9 (paras 18–19). In R (Hodkin) v Registrar of Births, Death and Marriages [2013] UKSC 77, [2014] 2 WLR 23 at para 57, Lord Toulson described religion for the purpose of the Place of Worship Registration Act 1855 in the following terms: ‘I would describe religion in summary as a spiritual or non-secular belief system, held by a group of adherents, which claims to explain mankind's place in the universe and relationship with the infinite, and to teach its adherents how they are to live their lives in conformity with the spiritual understanding associated with the belief system. By spiritual or non-secular I mean a belief system which goes beyond that which can be perceived by the senses or ascertained by the application of science. I prefer not to use the word “supernatural” to express this element, because it is a loaded word which can carry a variety of connotations. Such a belief system may or may not involve belief in a supreme being, but it does involve a belief that there is more to be understood about mankind's nature and relationship to the universe than can be gained from the senses or from science. I emphasise that this is intended to be a description and not a definitive formula.’

26 Williamson, [2005] 2 AC 246, at para 16.

27 (1995) 19 EHRR 34, at para 47; see also para 17.

28 Kokkinakis v Greece (1993) 17 EHRR 397 at paras 418–419.

29 Dingemans et al, Protections for Religious Rights, paras 3.92 ff.

30 One of the first and most important was Sahin v Turkey (2005) 41 EHRR 8. In that case the applicant brought proceedings in Strasbourg as a result of being suspended from Istanbul University for wearing the Islamic headscarf in breach of the ruling of the vice-chancellor of the university that students who wore the Islamic headscarf would not be admitted to lectures. The ECtHR held that the interference with the applicant's Convention rights was justified in principle, proportionate to the aim pursued and within the margin of appreciation allowed to Turkey, bearing in mind in particular that the principle that the state should be secular was one of the fundamental principles of the Turkish state. It emphasised (at para 109) the importance of the role of the national decision-making bodies in the difficult and sensitive area of the relationship between the state and religions. Interestingly, in that case, the court singled out the United Kingdom for its tolerance, multiculturalism and efforts to eliminate racial discrimination (para 61). See also Dogru v France (2009) 49 EHRR 8.

31 [2006] 1 AC 100.

32 The following reasons were given: (1) the school's rule about uniforms had been made for the legitimate purpose of protecting the rights and freedoms of others; (2) the defendants had gone to great lengths to devise a school uniform policy which respected Muslim beliefs in a way which was inclusive, unthreatening and uncompetitive; (3) the defendants had been entitled to conclude that the shalwar kameez was acceptable to mainstream Muslim opinion and that allowing the claimant to wear a jilbab had significant adverse repercussions for other pupils; and (4) Parliament had given the defendants the power to make their own decisions about uniforms. In R(X) v The Head Teachers of Y School and The Governors of Y School [2007] EWHC 298 (Admin), Silber J, applying the Denbigh High School case, held that the claimant's school had not infringed her Article 9 rights in prohibiting her from wearing the niqab veil at school as she could have accepted an offer of a place at another school which achieved good academic results and which it was easy for her to get to and, most significantly, where she could wear a niqab. There is also R v Governing Body of Millais School ex parte Playfoot [2007] EWHC 1698 (Admin) (decision of the defendant not to permit the claimant schoolgirl to wear a ‘purity’ ring held not unlawful). Another interesting recent judgment on religious dress, not related to either school uniforms or employment, was that given on 16 September 2013 in R v D(R) (unreported) by HHJ Peter Murphy in relation to the wearing of the niqab by the defendant during proceedings in the Crown Court. Balancing the defendant's Article 9 rights against ‘the public interest in the Courts conducting criminal proceedings in accordance with the rule of law, open justice, and the adversarial process’ (para 36), including the crucial importance of the ability of the jury to see the defendant for the purposes of evaluating her evidence, Judge Murphy held that the defendant should be asked to remove her niqab for identification and that she must remove the niqab throughout her evidence, but otherwise she would be free to wear the niqab during the trial.

33 (2013) 57 EHRR 8.

34 Ms Eweida's claim was rejected by the Employment Tribunal as she had not established indirect discrimination. Her appeal to the Court of Appeal was dismissed. The Supreme Court refused her permission to appeal.

35 Eweida at para 89. See also Mba v Merton London Borough Council [2014] 1 All ER 1235 at paras 34 (Kay LJ) and 41 (Vos LJ).

36 Eweida at para 82.

37 It referred in that context to Lord Bingham's observations in the Denbigh High School Governors case.

38 Ibid, at para 83.

39 Ibid, at para 91.

40 Ibid, at paras 92–95.

41 (2013) 57 EHRR 8.

42 Ibid, at para 97.

43 Ibid, at para 98.

44 Ibid, at paras 99–101.

45 European Communities Act 1972.

46 This was issued in 2000 and became legally binding on member states with the entry into force of the Treaty of Lisbon in December 2009. The Charter entrenches various rights, freedoms and principles, including those enshrined in the Convention.

47 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJL 303, 2 Dec 2000, 16).

48 That is to say, the relevant anti-discrimination provisions formerly in the Race Relations Act 1976 and Part 2 of the Equality Act 2006, the 2003 Religion or Belief Regulations, the 2003 Sexual Orientation Regulations and the 2007 Sexual Orientation Regulations. EA 2010 includes race, religion or belief and sexual orientation as ‘protected characteristics’ and prohibits discrimination in relation to them in Part 2 of the Act. A distinction is drawn between direct and indirect discrimination: the former cannot be justified but the latter can be.

49 Devlin, P, The Enforcement of Morals (Oxford, 1968)Google Scholar. See also the views expressed in Shaw v DPP [1962] AC 220 by Viscount Simonds (at para 268) and Lord Tucker (at para 285).

50 In a private prosecution brought by Mrs Mary Whitehouse.

51 [1979] QB 10 at para 12 (per Roskill LJ).

52 The case was further appealed to the House of Lords on the issue of whether the offence of publishing a blasphemous libel required an intention to blaspheme. The House of Lords, dismissing the appeal, held (with Lord Diplock and Lord Edmund-Davies dissenting) that it was sufficient for the prosecution to prove that publication had been intentional, and that the matter published was blasphemous. In other words, it was an offence of strict liability.

53 Law Com No 145.

54 The two dissenting commissioners agreed with the substance of the main criticism of the majority of the existing common law offence of blasphemy and with the recommendation of the majority that it should be abolished. They considered, however, that the preferable course would be to enact a new offence which, reflecting the views of Lord Scarman in the Gay News case, would penalise anyone who published grossly abusive or insulting material relating to any religion for the purpose of outraging religious feelings.

55 The last blasphemy case was an unsuccessful attempt to prosecute the Director-General of the BBC, Mark Thompson, for broadcasting Jerry Springer: the opera: R(Green) v City of Westminster Magistrates' Court, Thoday and Thompson [2007] EWHC 2784 (Admin).

56 Sexual Offences (Amendment) Act 2000, which was brought into force on 8 January 2001. The proceedings in the ECtHR were then struck out by consent: Sutherland v UK, (Application no. 25186/94) (27 March 2001).

57 Lustig-Prean and Beckett v UK (2000) 29 ECHR 548.

58 Another notable Strasbourg decision was in Goodwin v UK (2002) ECHR 588, in which the ECtHR upheld the complaint of the applicant, who was a post-operative male-to-female transsexual, that the failure of English law to recognise and give effect to her gender reassignment was a violation of Articles 8 and 12. This led to the enactment of the Gender Recognition Act 2004.

59 Aggravated offences of assault, criminal damage and harassment were extended to religious hatred by the Anti-terrorism and Security Act 2001. The stirring up or incitement offences were extended to religious hatred by the Racial and Religious Hatred Act 2006 and to sexual orientation by the Criminal Justice and Immigration Act 2008. The enhanced sentencing regime was extended to hostility to religious groups by the Anti-terrorism, Crime, and Security Act 2001 and to hostility on the ground of sexual orientation by the Criminal Justice Act 2003.

60 (2013) 57 EHRR 8.

61 The Employment Tribunal upheld Ms Ladele's complaint of direct and indirect discrimination. The Employment Appeal Tribunal reversed that decision. The Court of Appeal rejected her appeal. The Supreme Court refused her permission to appeal.

62 Ladele, at para 105.

63 Ibid, at para 106.

64 (2013) 57 EHRR 8.

65 Ibid, at para 109.

66 Ibid.

67 Ibid, at para 110.

68 [2012] 1 WLR 2514; on appeal [2013] 1 WLR 2741.

69 [2013] 1 WLR 2490.

70 The judges in Black indicated that they would have preferred to hold that there had been indirect discrimination rather than direct discrimination, but considered that they were bound in that respect by the earlier decision in Preddy v Bull.

71 For further exploration of the distinction between direct and indirect discrimination, see B Hale, ‘Religion and sexual orientation: the clash of equality rights’, paper presented to the Comparative and Administrative Law Conference, Yale Law School, 7 March 2014.

72 Jowell, J, ‘The rule of law and its underlying values’, in Jowell, J and Oliver, D (eds), The Changing Constitution (seventh edition, London 2011), pp 11–34CrossRefGoogle Scholar at p 12.

73 Bingham, Lord in The Rule of Law (London, 2010)Google Scholar put forward eight principles underlying the concept of the rule of law. He summarised its core as being that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered by the courts. Some legal philosophers, on the other hand, have seen the rule of law as meaning that the law itself has certain inherent qualities, such as clarity, prospectivity, stability, openness and access to an impartial judiciary. See Raz, J, ‘The rule of law and its virtue’, (1977) 93 LQR 195–211Google Scholar; Raz, J, The Authority of Law (Oxford, 1979)Google Scholar. Lon Fuller's requirements were generality, public promulgation, stability, consistency, fidelity to purpose and prohibition of the impossible (see Fuller, L, The Morality of Law (New Haven, CT, 1969)Google Scholar).

74 Compare Simmonds, N, Law As a Moral Idea (Oxford, 2007)Google Scholar. This is not so different from Rowan Williams' idea of the rule of law as ‘the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition’: R Williams, ‘Civil and religious law in England: a religious perspective’, in Griffith-Jones, Islam and English Law, pp 20–34 at p 30.

75 [2010] EWCA Civ 880 at paras 23–24.