‘We’re creating a hierarchy of victimhood’

On 30 March 2007, Aishah Azmi, the Muslim teaching assistant sacked over her refusal to stop wearing the veil in the classroom, lost her controversial appeal at an employment tribunal in Leeds, England. The 24-year-old from Dewsbury, West Yorkshire, courted media attention for almost a year since coming into dispute with Headfield Church of England Junior School, which said that it decided to sack her over concerns that the veil prevented children from being able to understand what she was saying.

Over the last few months, the veiled face of Aishah Azmi has served as a totemic reminder of the tensions emanating from new religious discrimination and religious hatred laws in Britain. While some media commentators have seen Azmi’s case as a pressing reminder of the need for a law to protect vulnerable religious minorities, others have seen it as a sop to grievance culture, encouraging individuals to make unreasonable demands in court.

In his new book, Religious Discrimination and Hatred Law, Neil Addison provides the first comprehensive survey of legislation concerning religion in diverse areas such as criminal law, discrimination, employment and harassment, and charts the growing role of courts in regulating this messy dimension of society. A practising barrister for over 20 years, Addison is concerned about the expansion of the law into a complicated moral aspect of human life, and fears that a new generation of laws will remove people’s powers to criticise, challenge or defend their religious (or non-religious) views. He campaigned vociferously against the law outlawing incitement to religious hatred (see Divided before the law, by Neil Addison ) and has also set up his own website offering free information and advice to the public.

Addison considers the first generation of anti-discrimination laws established in the 1970s (for example, the Race Relations Act 1976 and the Sex Discrimination Act 1975) to be largely benevolent, reasonable and narrow in their focus. However, he reserves serious criticism for the second generation of anti-discrimination laws, which have proliferated in the past 10 years culminating with the Racial and Religious Hatred Act 2006 and the Equality Act 2006. These developments, Addison argues, significantly expand the reach of the law beyond areas of fixed identity, to areas such as religious belief and sexual orientation, which presume a level of choice and changeability. ‘Suddenly’, he says, ‘religion is becoming a very political area’.

Addison sees the expansion of law into the terrain of religion as part of ‘a new type of philosophy’: ‘We used to have laws because we considered them necessary, but now it seems we have laws because they are desirable…. If something is regarded as good or bad, we use the law to direct it. In effect, we’re trying to legislate morality.’

For Addison, the law has now become a tool for some groups to impose their moral positions on others, whether it is the ban on smoking or the ban on foxhunting or restrictions on what we can say about minority groups. ‘I have met a number of campaigners, for instance in the gay rights movement, who talk about using the law to “send a message”. But the law is not the right way to send a message. Politics is.’

This heavy-handed use of the law to enforce a new morality is something Addison objects strongly to. In 2005, he represented Joe and Helen Roberts, an elderly Christian couple from Fleetwood, Lancashire, who were visited by two local police officers after they had telephoned their local council’s diversity officer to complain about the council’s pro-gay policies. The couple, who had never been in trouble with the law before, were subjected to an 80-minute lecture by the police officers about homophobia. Last year the couple sued the police and council using the Human Rights Act 1998 and eventually won an apology and damages.

Addison says that the most depressing part of the whole incident is that at no point during the initial telephone conversation with the couple did the council’s diversity officer try to persuade them of his viewpoint. ‘Instead of taking the opportunity to argue with them, as should happen in a democracy, the diversity officer called the police in order to suppress views he disagreed with.’

The problem with using the iron standard of the law to enforce moral positions is that it does not always deliver morally satisfactory or consistent results. How can one determine through the law what is ‘hateful’ speech, what causes great offence, and what is ‘reasonable’? If a woman wearing a hijab is attacked by someone who shouts ‘I hate you fucking Muslims’, then the defendant would be charged with religiously aggravated assault. But what would happen if a Muslim shopkeeper regarded Muslim women who did not wear the hijab to be bad Muslims and refused to serve them in his shop? Is that discrimination against a religion or an argument within a religion?

In terms of constituting the boundaries of acceptable religious belief, it seems inappropriate for judges to be left to decide. Addison spends the first chapter of his book teasing out the apparently simple question ‘What is religion?’ – only to show that there is surprisingly little consistency on this question across different legislation. Addison demonstrates that courts rely inevitably on subjective instinct. In the words of the US Supreme Court Justice who was asked to define pornography: ‘I can’t define it; but I know it when I see it.’

Consequently, the goalposts keep shifting on the issue of what constitutes a political or philosophical belief worthy of protection. In 2005, an individual lost his case at an employment tribunal for being refused a job interview because he was a member of the far-right British National Party (BNP). The tribunal decided that his membership of the BNP did not qualify for protection. However, the slightly different wording of the Equality Act 2006 means that such views, which are political, might now be protected as ‘philosophical beliefs’.

What has been the impact of these different laws in court? Although for any campaigner it is always tempting to sensationalise and extrapolate worst-case scenarios about new laws and policies, Addison, to his credit, examines the way in which judges and lawyers actually operate (mostly exercising a reasonable sense of proportion) and suggests the subtle ways in which the law will work on a day-to-day basis. He is cautious about offering a prediction about the effect of newer legislation. ‘It is quite early to tell…it may be that all these laws will be a damp squib.’

But, he says, the weight given to subjective factors such as how the victim feels may be a greater encouragement for people to bring claims. In discrimination cases, there is a reverse burden of proof, which means employers need to offer evidence to show they have not broken the law. In reality, judges still require significant persuasion before they will award a claimant damages, but this shift in the law means it is increasingly hard for the accused to be treated as innocent until proven guilty. ‘Once the accusation is made, it tends to stick’, says Addison. Also, there is now a greater risk that the law will be used as a political tool. ‘Now this legislation is in place, it is possible that ideologically driven groups may go looking for cases to fight.’

The new Commission for Equality and Human Rights (CEHR) will start to operate in October, under the helm of Trevor Phillips. It will have significant new powers to investigate virtually any organisation, place orders on them and take legal action. Because this is under discrimination rather than criminal law, these organisations (which may include churches, charities and community centres) will not be entitled to legal aid. Whereas the original equalities bodies (such as the Commission for Racial Equality that preceded the CEHR) were expected to enforce the existing law, the CEHR has an added duty (Section 3, Equality Act 2006) to ‘encourage and support the development of a society’ in which there is equality, respect for diversity and human rights. In other words, it is not merely a law enforcer, but a body with legal powers to enforce its view of the kind of society we ought to be.

A practicing Catholic, Addison believes that by adopting a ‘Zero Tolerance’ approach to any manifestation or expression of discrimination, the CEHR will repeat the mistakes of the Spanish Inquisition which famously said that ‘Heresy has no Rights’.

It may be hard to tell how the CEHR will operate, and how many cases will eventually be brought to court. But the chilling effect on how groups engage with wider society can already be guessed at. One of the negative consequences of the law, Addison suggests, will spring from its insistence on all religions treating other religions equally; a well-meaning idea which paradoxically could actually discourage mainstream religious cooperation. For instance, if a church lets a local Hindu community group use its premises for services then it may be in difficulties about refusing to let a Pagan group use the premises also. Perversely, the law builds in a disincentive for churches and other institutions to open themselves up to some groups, in case they are then forced to open their doors to other groups that they dislike. Although such examples may appear far-fetched, the law has an all too familiar effect of making people ‘watch their backs’ and think twice before making decisions.

Also, because subjective factors are taken into account, different groups are given no incentive to ‘live and let live’; rather, the more hurt and offended they feel, the more onus there will be on the law to protect them. If a religious group shows tolerance and forbearance of its critics, it will receive far less protection from the courts than another group that protests loudly.

The driver behind the new legislation, Addison tells me, is a new culture of victimhood, in which lobby groups representing particular identities compete to receive the most protection. ‘Every time you legislate to prevent one type of discrimination, another group demands protection’, he says. It is widely known that Muslim lobby groups (particularly the Muslim Council of Britain) were the most vociferous in pushing for the law against the incitement to religious hatred. Their argument rested on a claim for parity with Christianity, which was formally protected by the ancient law of blasphemy – though, as Addison points out, the blasphemy law is all but defunct. The last public prosecution was in 1922 and the last private prosecution was brought by Mary Whitehouse in 1977.

Though a practising Catholic himself, Addison believes that the blasphemy law should simply have been repealed rather than remaining as a perceived, but in reality meaningless, special protection to Christianity. In reality, people today can say pretty much anything they like about Christianity and the police will not lift a finger. However, the law against the incitement to religious hatred is more likely to be enforced, simply because it is new, and the Crown Prosecution Service must take this into account when making judgements on whether a prosecution is ‘in the public interest’. A law that many people thought was outdated and unnecessary has been used to justify the creation of a law that will be enforced more rigorously by prosecutors.

Addison says that in the competitive culture of victimhood, even mild-mannered Christians are beginning to play the discrimination card, following the example of Muslim lobby groups. More generally, the emphasis in the law on discrimination, Addison believes, is part of a broader emphasis on difference. People are encouraged to emphasise their differences and ‘insist on their rights’, rather than being encouraged to find accommodation with others by negotiation and persuasion. ‘The danger is that instead of seeing ourselves as citizens in the same society, we are trying to create a hierarchy of victimhood with more and more groups defining themselves as victims and demanding special protection.’

Although many campaigners regard the new laws relating to religious discrimination as a sign of modernity, in some ways they mark a return to medieval thinking about freedom. Instead of deciding amongst ourselves through political argument and the give-and-take of debate, the law has become a way of closing down discussion and taking that decision out of our hands. Ironically, Aishah Azmi’s ‘personal’ decision to wear the veil was said to have been made as a result of a fatwa issued by a cleric at her mosque. The notion that the law should legitimise this kind of authority over the private sphere of belief is creeping into the fabric of our own legal system.

Munira Mirza is a writer and researcher based in London, and a co-founder of the Manifesto Club. You can buy a copy of Neil Addison’s Religious Discrimination and Hatred Law from Amazon (UK).