In the courts, equality trumps tolerance

The European Court of Human Rights (ECHR) is currently hearing four cases from the UK involving religious tolerance. Three practising Christians have been sacked for manifestations of their religious beliefs and a fourth was suspended after wearing a cross to work. The cases have sparked heated debate, with Lord Carey, the former Archbishop of Canterbury, even claiming that British judges have used a strict reading of equality law to strip the legally established right to freedom of religion of ‘any substantive effect’. Yet Lord Carey, like others on both sides of the debate, believes that it is the interpretation of laws that is the problem. What the cases actually show is that it is the equality laws themselves that are a barrier to tolerant attitudes.

The first of the four cases to reach the UK’s courts concerned Lillian Ladele, a registrar of births, marriages and deaths who refused on religious grounds to conduct civil partnerships, the UK’s close equivalent of marriage for same-sex couples. Her employers, Islington Council, could have found other registrars to conduct these services but it dismissed her on the basis that her refusal was contrary to the council’s equality and diversity policy.

Ladele’s claim to have been discriminated against was dismissed by the UK Court of Appeal on no less than four grounds. First, the court found that the issue of religion was irrelevant to Ladele’s dismissal as Islington had not dismissed Ladele on account of her religious beliefs but on account of her refusal to officiate at civil partnerships. In short, the claim was dismissed because the court focused on the reason for Ladele’s dismissal in a narrow sense (breach of duty) and declined to focus on the reason for the reason (religious beliefs), even though the two were clearly directly related.

Secondly, the court found that Islington Council had not, even indirectly, impinged on Ladele’s religious beliefs because she remained free to hold those beliefs and to worship as she wished. Thirdly, the court found that even if Ladele had been discriminated against, it would have been justified because Islington’s requirement for all registrars to perform civil-partnership functions was a legitimate aim.

Finally, and most telling of all about the role that anti-discrimination laws now play, the court found that Islington was duty-bound to require Ladele to perform civil-partnership duties and hence effectively to sack her. The argument was that if Islington had accommodated to Ladele’s beliefs, then it would have been indirectly and unlawfully discriminating on grounds of sexual orientation against those who wanted civil partnerships.

As a matter of law, none of the Court of Appeal’s findings was objectionable. But, as Mr Bumble from Oliver Twist would say, ‘the law is an ass’. What discrimination law does not and cannot do is come to the aid of those who suffer from a lack of tolerance. That Ladele was a victim of intolerance is clear from the fact that Islington could have accommodated her views and done so without harm being caused to anyone, save for those with an unreasonably sensitive disposition. As the Court of Appeal observed, by the time of her dismissal it was ‘pretty clear that, by accommodating the wishes of the only registrar who wanted to avoid civil-partnership functions, Islington would not have significantly, if at all, impaired the quality of their registry services, whether in the field of civil partnerships or otherwise’. Indeed, for sometime Ladele made informal arrangements with colleagues to swap assignments so that she avoided officiating at civil partnerships. This worked well until two gay registrars complained that they felt ‘victimised’ by Ladele not carrying out civil-partnership duties.

The problem here is not with laws per se. For many centuries, laws have been used to promote tolerance. In 1689, parliament passed the Act of Toleration that allowed freedom of worship to Protestants who dissented from the Church of England, such as Baptists and Congregationalists. In 1789, the French revolutionaries adopted Tom Paine’s constitutional injunction that ‘No one shall be interfered with for his opinions, even religious ones, provided that their practice doesn’t disturb public order as established by the law’. Two years later, the American Bill of Rights provided that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…’ In 1829, the Catholic Relief Act repealed the last of the criminal laws aimed at British Catholics.

But these were laws passed with a clear objective of promoting religious tolerance and, moreover, they were passed by societies with a clear understanding of the importance of tolerance, in religion and other walks of life. Today’s laws do not have the promotion of tolerance, religious or otherwise, as an objective. Indeed, their very wording is concerned not to grant greater freedom, particularly from the state, but to restrict behaviour between individuals. In place of Tom Paine’s words that ‘no one shall be interfered with for his opinions’ and his injunction aimed at limiting the state’s power, we now have in the Equality Act 2010 prohibited behaviour between individuals: ‘A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.’ As the recent cases before the Strasbourg Court show, these laws empower the state to regulate the behaviour of individuals acting according to conscience and do nothing to promote more tolerant attitudes.

Ladele’s case did not, however, stop the flow of court cases, as other aggrieved Christians sought legal remedies. Next came Nadia Eweida, who had been suspended without pay by British Airways for refusing to conform to her employer’s uniform policy by seeking to wear a cross. Her reliance on anti-discrimination laws failed before an employment tribunal, the Employment Appeal Tribunal and the Court of Appeal for much the same reasons as Ladele’s. In fact, the Court of Appeal found a further reason for dismissing her reliance on what is now a provision in the Equality Act when it held that in order to succeed with a discrimination claim it was necessary to show that an identifiable section of a workforce, even a small one, had suffered a particular disadvantage that the claimant shared. Since Eweida could not show that any other British Airways employees had ever made a request to wear a cross or been deterred from doing so, she could not sustain a discrimination claim.

The third case was brought by Shirley Chaplin after she was dismissed by her employers, the National Health Service, for wearing a crucifix on a chain around her neck. She had done this for some time but fell foul of her employer’s uniform policy when crew necks gave way to V-necks. Her claim, based on discrimination, failed before an employment tribunal and she was advised not to appeal. Gary McFarlane, the fourth litigant, was summarily dismissed by his employers, Relate, for gross misconduct after he, on religious grounds, stated that he would not comply with Relate’s equal-opportunities policies and provide counselling to same-sex couples. By the time the Employment Appeal Tribunal dismissed his claim, it also concluded that the law was so tolerably clear that it refused him permission to appeal to the Court of Appeal.

With the appellants having exhausted their domestic avenues of legal redress, the cases have now ended up in the European Court of Human Rights, where the arguments centred not on discrimination laws but on the European Convention of Human Rights. Article 9 provides that everyone has ‘the right to freedom of thought, conscience and religion’ and to manifest that religion. At first blush, this might be thought to be as liberating as something drafted by Tom Paine. But the right to manifest that religion or belief ‘shall be subject only to such limitation as are prescribed by law and are necessary in a democratic society for’, among other things, ‘the protection of the rights and freedoms of others’. As with so much of the European Convention, it is more concerned with regulation than liberation.

Article 9 had been raised by Ladele in the Court of Appeal but her arguments were given short shrift on the grounds that her ‘proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington’s concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community’. In short, the court found that Islington’s ‘Dignity for All’ policy about equality and diversity trumped any notions of tolerance.

It is always possible for the European Court of Human Rights to come to a different conclusion, but the judgments of this continental court show that its track record on tolerance is no better than our domestic courts. Indeed, many of the UK government’s arguments before the ECHR were directed at the issue that the Strasbourg court had previously found so persuasive, namely that religious employees can ‘manifest [their] beliefs in many ways outside the professional sphere’. Or as the government’s barrister put it, an employee could resign and move to another job. This, he said, would be lawful because ‘there is clear and consistent jurisprudence that the person who asserts religious rights may on occasion have to take account of their position’.

What is striking from these four cases is the extent to which a simple but important issue, tolerance, has been entirely overlooked by the courts. The word, and its cognate forms, does not appear in either of the Ladele or Eweida Court of Appeal judgments, which collectively span over 200 paragraphs. Neither is the issue considered in substance. If the cases had turned on an issue of tolerance, it is improbable that the Court of Appeal would in each case have needed to hear two days of legal argument before taking several weeks to give lengthy written judgments.

On an edition of BBC Radio 4’s weekly topical debate show Any Questions earlier this month, host Jonathan Dimbleby cited a few of the sentences spoken by the government’s barrister in the ECHR: ‘These four linked cases at their core raise questions about the rights and the limits to the rights of employees to force their employers to alter employment conditions to accommodate the employee’s religious practices. The Convention protects individuals’ rights to manifest their religion outside the professional sphere. However, that does not mean that in the context of his or her employment an individual can insist on being able to manifest their beliefs in any way they choose.’ The Daily Telegraph summed up the government’s submissions with the headline ‘Christians should “leave their beliefs at home or get another job”‘. The panellists on Any Questions were equally forthright and critical: ‘I don’t know how anybody could have constructed the sentence you’ve just read out… whoever did, there’s something wrong with them’, said Labour’s former deputy leader, Lord Hattersley. ‘Thank god that man didn’t write the Sermon on the Mount’, quipped the political historian, Peter Hennessy.

It is not difficult to make fun of lawyers for speaking legalese. But the problem is not with the lawyers who make the arguments or with the judges who rule on them. The problem stems from the laws that serve to obscure issues of principle by replacing them with technical arguments about why a person was sacked, whether an employer’s diversity policy had been followed or whether hypothetical victims had a greater claim to have been wronged. As Lord Neuberger, the then Master of the Rolls, said in Ladele’s case, ‘the legislature has decided that the requirements of a modern liberal democracy, such as the United Kingdom, include outlawing discrimination… on grounds of sexual orientation, subject only to very limited exceptions’. It was the very application of these laws that enabled the Court of Appeal to conclude that Ladele had been lawfully dismissed for acting according to her conscience.

It will be some time before the ECHR delivers its judgment, and in court proceedings it can be difficult to predict outcomes with certainty. But what seems clear from the arguments that have surrounded these four cases is that whatever conclusion the ECHR reaches, it will not turn on an understanding of the importance of tolerance. If there are any lessons to be learnt from these court cases, it is that we need fewer laws and less reliance on them. That way we could move forward towards ‘a modern liberal democracy’ worthy of the description ‘liberal’.

Jon Holbrook is a barrister in London. He is speaking at the debate Public inquiries in the dock at the Battle of Ideas festival on Sunday 21 October.