Andrew Hambler assesses Barnabas Fund’s call for a new law to ‘enshrine our religious freedoms’
For some months now, Barnabas Fund has been calling on supporters to sign a petition for a new law to guarantee religious liberty.
The petition reads as follows: ‘In the light of the British tradition of fair play, tolerance, diversity and equality, we the undersigned call upon the British government to introduce a new law to enshrine fully and permanently our hard-fought-for religious freedoms: the freedom to worship; to read Scriptures in public; to interpret Scriptures without government interference; to choose or change your faith; to preach and try to convince; to establish places of worship; and the freedom from being required to affirm particular beliefs to study, stand for election, or hold particular jobs (except where there is a genuine occupational requirement such as Chaplaincy posts).’
The question is, however, what might such a petition achieve, and should Christians sign it?
The current situation
A good starting point is to identify where we currently are; that is to say, what is currently enshrined in law with regard to religious freedom. Article 9(1) of the European Convention on Human Rights (freedom of religion and belief), of which Britain is a signatory, reads as follows: ‘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.’
Comparing Article 9(1) to the Barnabas proposal, it is clear that there is very considerable overlap. ‘Freedom to worship’ and ‘to choose or change your faith’ are explicitly included within the current legal framework. The Article 9 right to manifest religion … ‘in worship, teaching, practice and observance’ strongly suggests that freedom to interpret Scripture without government interference; the right to teach suggests also the right to preach; and the fact that this right is exercis-able in public and in private suggest the right to read Scriptures publicly. European courts have also interpreted Article 9 to recognise a right to ‘bear Christian witness’ to others (‘to preach and to try to convince’).
Article 9 also operates in the workplace, so freedom of religion is guaranteed there. It is reinforced by the Equality Act which makes it unlawful to discriminate on the grounds of religion and belief, including at the recruitment stage.
Why the need?
So, why would there be any need for a Barnabas-style proposal for new legislation?
It is clear, from the commentary which Barnabas has produced alongside its petition, that there is a perception that something has gone awry. Many Christians will be familiar with a number of causes-célèbres in recent years, such as the Eweida case (the British Airways employee prevented by a dress code from wearing a small cross); the Ladele case (the Registrar of Marriages obliged by her employer to carry out Civil Partnerships); the Mba case (of a Christian carer required to work on a rota on Sunday even though her desire not to work that day had been accommodated for two years); and the so-called ‘Bed and Breakfast’ cases (where Christian hoteliers have been successfully sued for refusing to provide double bedrooms to same-sex couples).
Unsuccessful claims
It may seem strange therefore that there have been so many unsuccessful claims to assert religious rights if they are apparently guaranteed by Article 9 (and other legislation).
The reason is that religious rights under Article 9(i) are qualified by Article 9(ii), which reads: ‘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.’
What this means is that, although there is an absolute right to hold religious beliefs and to worship alone or with others (and to change religious beliefs), the right to express (or ‘manifest’) religious beliefs can be restricted for various reasons, most notably for ‘the protection of the rights and freedoms of others’.
Discrimination law too allows for employers to ‘justify’ a form of discrimination (known as indirect discrimination) which is most likely to apply to the manifestation of religion. This is why Mba and Ladele lost their claims – the employer could show sufficient justification to satisfy a court that the interests of others (employers and same-sex couples respectively) would be adversely affected by the manifestation of the religious ‘right’ to the extent that these other rights had precedence.
Question of balance
The problem with these and other cases is that it is strongly arguable that courts and tribunals have repeatedly got it wrong when they weigh religious rights against other rights. Occasionally even the higher courts have acknowledged this. For example, in Eweida v UK, the European Court of Human Rights concluded that the British courts had given too much weight to the employer’s prerogative and overturned their decisions in favour of the claimant. It has also been seen most recently in the case of Ashers (the Northern Ireland bakery involved in the so-called ‘gay cake row’) where the Supreme Court concluded that the lower courts had incorrectly preferred rights only tangentially associated with sexual orientation over the more concrete rights of Christians not to be compelled to express something with which they deeply disagreed.
Judges and faith
The problem is that judges are not always very understanding when it comes to religion and, as a result, judicial discretion (for example in weighing up competing rights) has not always resulted in judgments which are fair to the religious claimant. Some judges (for example in the Ladele case) view religious obligations as involving a good deal of choice and flexibility, unlike for example, someone’s sexual orientation which is usually seen as ‘fixed’*. On occasion, judges have even chosen to opine on the proper limitations of individual conscience – for example in the High Court judgment in Ashers, a learned judge stated that the Christian bakers had no basis to consider that they were endorsing a message in favour of same-sex marriage by the act of icing it on a cake, implying that they were being somewhat unreasonable in their objections. As a result, religious people are often seen as unnecessarily stubborn when they should be yielding and their rights are often easily ‘trumped’ by other rights as a result. Needless to say, such thinking shows a poor grasp of the reach of the Christian conscience.
What would change?
Would the proposals change this situation? It is difficult to see how. Unless the intention is that they would give absolute rights to manifest religion then really it does not take us forward. If the proposals are intended to give absolute rights then problems would emerge – what happens when a Muslim’s right to ‘try to convince’ outside a church building interferes with the Christian’s ‘freedom to worship’? Will employers have to accommodate absences for Friday prayers or for an extended pilgrimage to Mecca regardless of the cost or inconvenience of those absences? The difficulty is that the exercise of religious freedom does sometimes affect other ‘rights bearers’ and courts or other bodies will often have to mediate between competing rights. The important thing is that they do so fairly and do not undervalue the importance of religious convictions.
The Barnabas intervention is undoubtedly a well-meaning one and many Christians may see symbolic value in signing a petition which may bring the issue of religious liberty into the public eye. However, the specific proposals are unlikely to gain much traction either in government or in Parliament, not least because they already substantially exist in law. What is needed more is greater judicial sympathy towards religious minorities, not least Christians with conservative or evangelical convictions, whose consciences sometimes require them to take public stances which are out of kilter with the liberal mainstream and whose existing rights need to be taken more seriously.
Andrew Hambler is an Associate Professor in Employment Law, and the author of Religious Expression in the Workplace and the Contested Role of Law.
