Which of these things is not like the others?

  1. Being forbidden to wear a cross at work
  2. Being required to perform a public service without discriminating against gay people

Okay, it’s only a list of two.  But apparently the UK’s Equality and Human Rights Commission thinks they’re alike in at least one important way: the people who fought against them should be supported in taking a legal case to the European Court of Human Rights.

I’m uneasy about this. I understand that part of the EHRC’s role is to support strategic legal cases in order to clarify the law, and I think the European Court of Human Rights is quite bad at protecting the religious freedoms of individuals (particularly the religious freedoms of women). Mrs Eweida was forbidden by British Airways from wearing a cross with her uniform, and she lost her case even though BA subsequently changed their policy to permit at least some religious symbols. That policy change alone suggests the reasons for banning cross-wearing weren’t really weighty enough to justify interference with religious freedom. (I don’t know what to say about the Chaplin case – I’ve no idea if there’s a genuine health and safety risk involved in a nurse wearing a necklace.)

But in McFarlane and Ladele, there’s another really important right at stake in a way it just isn’t in Eweida: McFarlane and Ladele both chose to do jobs which were about serving people in contexts to do with important and very personal areas of private life, respectively relationship counselling and acting as a Registrar of births, marriages and deaths. It seems to me absolutely correct that they should be required to deliver those services in line with the non-discrimination policies of the organisations for which they worked.  I  just don’t think the EHRC should be supporting them – especially when there are Christian legal organisations only too happy to step in (or, indeed, who may have prompted the cases in the first place).

6 thoughts on “Which of these things is not like the others?

  1. Interesting development: the EHRC is sending the following email to ‘stakeholders’:

    “…the Commission has received requests for us to clarify our application to intervene in four cases at the European Court of Human Rights involving religious discrimination in the workplace. We’ve produced a Q and A which we hope will help clarify this application.

    Q Why did the Commission make applications to intervene in these four cases?

    These four cases were already before European Court of Human Rights (ECtHR) before the Commission considered intervening and it is our expectation that all four are highly likely to be heard together because they involve the same legal question.

    Commissioners on our Regulatory Committee took the view that, given our role as the National Human Rights Institution and equality regulator, it was not appropriate for these important cases to be heard without our input into the complex equality and human rights issues, including to ensure the principle of ‘reasonable accommodation’ is considered by the court.

    We recognise that our stakeholders have important practical experience of how these issues affect the workplace and we intend to seek the views of our stakeholders before making submissions to the ECtHR . We will therefore be contacting our stakeholders as soon as we receive notification from the Court that our intervention is permitted for their views in the anticipated 3 week period during which we prepare our submissions.

    Q. Who is the Commission supporting?

    The Court does not permit interventions to support one party or to comment on the facts. In our role as an intervener in existing legal proceedings, we do not support either party in a case but simply seek to aid the court with the benefit of the Commission’s policy input and interpretation of the law.

    The purpose of our intervention is to explain that the law should consider how it may give better respect for religious rights within the workplace than has hitherto been the case, without diminishing the rights of others. We want to change the view that there needs to be an either/or situation. The spotlight and focus is placed too frequently on conflict in place of dialogue that could help identify other acceptable workable solutions.

    The accommodation of rights is not a zero sum equation whereby one right cancels out or trumps another. We believe that if the law and practice were considered more widely, then in many situations there would be scope for diverse rights to be respected.

    Our view is that careful, sensitive and balanced treatment and consideration is discouraged by the approach taken by the courts to date. In turn, this hinders the development and dissemination of better practice amongst those with duties. We believe that where possible ways should be found within the law of promoting the resolution of disputes at an early stage, without protracted, costly, complex legal proceedings that irretrievably damage relations between the parties.

    Q Does this intervention reflect a new approach to the Commission’s work to ensure equality and prevent discrimination on grounds of sexual orientation?

    Certainly not. We do not and will not licence discrimination and we continue to believe in the importance of taking action to eliminate it. For example, we will continue to support the appeal to the Court of Appeal to defend the rights of the gay couple who were not allowed to share a double room at a hotel on behalf of civil partners Martyn Hall and Steve Preddy.

    There is not – and cannot be – any change in the Commission’s role as the NHRI and equality regulator with responsibility for preventing discrimination against people on grounds of sexual orientation, a responsibility that we aspire to fulfil to the best of our ability.

    We would like to reassure our stakeholders that under no circumstances would the Commission condone or permit the refusal of public services to lesbian or gay people….”

  2. So it’s quite true that *intervening* is not the same as *supporting*, and if they’re only intervening then the BBC article, to which I linked in the post, was wrong to say they were ‘backing’ the Christians. (If they’re only intervening, they aren’t paying anyone’s legal bills.)

    It’s also true (as I suggested) that we need greater clarity on how the freedom to manifest religious beliefs at work can be protected.

    But the EHRC’s failure to acknowledge the salient differences between the kinds of manifestation in the four cases is still inexcusable, and it’s not surprising they’ve had so many negative responses.

  3. Interestinger and interestinger. Here are links to the applications to the European Court of Human Rights, which – it turns out- are grouped in the way I thought they should be: Ladele & McFarlane together at http://www.bailii.org/eu/cases/ECHR/2011/737.html and Eweida & Chaplin together at http://www.bailii.org/eu/cases/ECHR/2011/738.html .

    So the EHRC could, I assume, have applied to intervene in one pair of cases, but not in the other. This makes me even more puzzled that they’ve apparently applied to intervene in all four cases, rather than only in the two dealing with restrictions on wearing religious symbols.

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