Recent EHRC legal and research work on religion or belief

1. Recent EHRC legal and research work on religion or belief Dr David Perfect Research Manager Equality and Human Rights Commission Visiting Research Associate University of Chester

2. Outline of presentation • Overview of EHRC work on religion or belief • EHRC legal interventions: balancing competing rights and manifestation of belief • London Metropolitan University research • Stakeholder responses to key legal cases: balancing competing rights and manifestation of belief • Broader implications, including conscientious objection and reasonable accommodation • New EHRC project on religion or belief • Other EHRC research work on religion or belief

3. EHRC religion or belief work: overview • Remit: 7 equality strands, including religion or belief, and 2 other protected characteristics; NHRI • Legal: infrequent, but high profile, interventions • Research/statistics: some research focuses explicitly on religion or belief, other is topic-based on different equality strands, including religion or belief • Specialist statistical briefing • Reviews: Human Rights Review and Triennial Review • Policy: general and specialist guidance documents; no statutory Codes

4. EHRC legal interventions • Relates to both equality and human rights law • Equality law since 2003 – now Equality Act 2010 – provides protection against discrimination • Human Rights Act 1998: Article 9 protects manifestation of belief • Can cause ‘stretch’ and potential confusion • Legal judgments an unreliable indicator of place of religion or belief in society • EHRC can provide direct legal assistance or apply to intervene (S28 and S30 of Equality Act 2006) • Strategic litigation policy guides decisions

5. Balancing competing rights • Key EHRC interventions involve balancing competing rights of religion or belief and sexual orientation • Funded and led Hall and Preddy case (same-sex couple refused a room by hotel owners) • Intervened in Johns (couple with negative views on same-sex relationships wishing to foster) • Intervened in Catholic Care (adoption agency seeking to restrict its services to same-sex couples) • Submission to ECtHR on joint Ladele and McFarlane case, preceded by informal consultation

6. Manifestation of belief and other cases • Intervened in Ghai (Hindu seeking right for open air funeral pyre for own funeral) • Intervened in JFS case (school refusal to admit a child of a non-Orthodox Jewish mother) • Submission to ECtHR on O’Donoghue case (discrimination against immigrants wishing to marry) • Submission to ECtHR on joint Eweida and Chaplin case (BA employee and NHS nurse wishing to wear crosses over uniform), preceded by informal consultation

7. London Metropolitan University study • Religion or belief, equality and human rights in England and Wales • Led by Alice Donald of Human Rights and Social Justice Research Institute and published in August 2012 • Mixed methods, including 67 interviews with different stakeholders, literature review, two online surveys, round table events • Religion or belief stakeholders carefully selected to get a wide range of views • Surveys really ‘calls for evidence’ - not representative • Includes extensive discussion of key legal cases and academic and stakeholder responses to these

8. Balancing competing rights: responses • Polarised responses: differences between some ‘religious’ and ‘secular’ groups and within religious groups • Some Christian interviewees and majority of Christian survey respondents opposed Court of Appeal judgment in Ladele on principle; other interviewees opposed judgment on pragmatic grounds • Some interviewees supported Ladele judgment on ground of principle • Business representatives, trade unions, LGBT stakeholders supported Ladele judgment in EHRC consultation

9. Implications: competing rights cases • Should existing rights to conscientious objection be extended to cover competing rights? • a) extend CO on principle b) no extension on principle c) pragmatically accommodate individual preferences • CO a residual form of protection only • Are judgments in Ladele, McFarlane, Johns etc an indication that Christians marginalised in society? • a) equality law the primary means to marginalise Christians b) Christianity still privileged • Is there a hierarchy of competing rights and does sexuality ‘trump’ religion or belief? • Dangers of media (mis)reporting of cases

10. Manifestation of belief: responses • Eweida case very well known and influential • Less polarised response than for Ladele, though still differences, in research and EHRC consultation • Religious groups generally, though not entirely, support Eweida • LGBT respondents trade unions, employers feel correct decision made in courts • Less Christian support for Chaplin – health and safety considerations seen as significant • Some criticism of EHRC over JFS case

11. Implications: manifestation of belief cases • Should there be a right to reasonable accommodation for religion or belief in the workplace? • Reasonably strong consensus that religion or belief should be accommodated unless compelling reasons not to allow this • Broad agreement about type of criteria that might reasonably restrict RA and that this easier over religious dress and working patterns than provision of facilities • Definition of ‘reasonable’ varies • Should there be greater emphasis in law on individual, compared with group, disadvantage?

12. New EHRC project • Round table discussions on religion or belief: Goldsmiths, University of London with Coexist Foundation; builds on London Metropolitan University research • Project led by Adam Dinham, started in October 2012 • 6 dialogue events: participants will be employers, trade bodies and religion or belief stakeholders • Topics for events being finalised, but likely to include conscientious objection and manifestation of belief • Overall aim to seek to increase mutual understanding and consensus between groups and reduce divisive litigation • Likely to result in follow-on EHRC work • Could focus primarily on fostering good relations • Should not increase legal intervention • EHRC interested in your views

13. Other current EHRC work • Population of Measurement Framework provides increased statistical data by religion or belief • Continued development and expansion of Religion or Belief Network • New members of RoB Network very welcome!

14. Contact details • Dr David Perfect (including for RoB Network) david.perfect@equalityhumanrights.com • General EHRC research inquiries research@equalityhumanrights.com Thank you