PRESS RELEASE
19 August 2011

Christian charity CARE has today expressed its profound concern that, under pressure from other equality interests, the Equalities and Human Rights Commission (EHRC) has announced it will no longer promote ‘reasonable accommodation’ for religion in its intervention on four religious liberty cases before the European Court of Human Rights.

On July 11 the Commission, in a press release entitled ‘Commission proposes “reasonable accommodation” for religion or belief is needed,’ announced that it would seek to intervene in four religious liberty cases that are soon to be considered by the European Court of Human Rights stating, ‘…the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief. … The Commission will propose the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief.’1

The Commission later elaborated: ‘We want to change the view that there needs to be an either/or situation. … 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.’2

Nola Leach, Chief Executive of CARE, said, ‘This was a significant step forward, because up until that point the Commission had never demonstrated a genuine concern to make space for religious liberty rights alongside other rights. Whenever there had been any kind of tension between religious liberty and other rights the Commission had always previously seemed to acquiesce with the simple trumping of religious liberty rights.’

In a consultation launched this week, however, the Commission announced that it was no longer going to argue that ‘reasonable accommodation’ should be made for religion in its intervention on the four religious liberty cases before the Court of Human Rights. It has instead decided to ask stakeholders for their views on ‘reasonable accommodation’ in an exceptionally short ‘summer holiday’ consultation that closes on September 5! They said, ‘While we have already decided that our submission will not make reference to reasonable accommodation, we are now formally seeking your views on this.’3

Furthermore, the Commission also announced that it now feels that in two of the cases coming before the European Court of Justice the British courts had made the right decision after all! Interestingly the two cases are the most important since they involve people in the workplace being told to choose between either violating their faith or losing their employment: blatant religious discrimination.4

Leach responded, ‘We are deeply concerned that the EHRC seems to have given in to lobbying from other equality interests. We are not arguing that religious rights should trump other rights as some others apparently believe their rights should trump those of religion. We simply say that space should be made for all and that no protected characteristic should be able to assert its rights in a way that attacks and undermines the space for other protected characteristics. There must be no hierarchy of rights.’

Leach concluded, ‘The EHRC took the right step on July 11, for which we warmly affirm them. They have a difficult job to do because there are tensions between different protected characteristics, but they must not allow themselves to be intimidated by other equality interests as they seek to discharge their responsibilities with respect to religious liberty in the UK.’5

The justification for trumping religion rather than making space for it alongside other protected characteristics is based on a very crude and deliberate misreading of Article 9 paragraph 2 of the European Convention of Human Right, suggesting that it says that whenever there is a conflict between religious rights and any other fundamental rights, religious rights should give way. In reality Article 9, paragraph 2 is not a permissive but a limiting provision. It does not say ‘whenever there is a conflict resolve it by trumping religion’ but actually the reverse. You can ONLY restrict religion when certain conditions are met.6 Moreover, there are very few absolute rights (the right to life, right to freedom from torture, prohibition of slavery and freedom from punishment without law) and religious liberty is one of the least qualified of all the many other rights. Thus the notion that if ever religious liberty rights clash with any other rights they should be trumped is patently untrue.

CARE urges the Equalities and Human Rights Commission not to be diverted from its original plan and says that they must promote reasonable accommodation in its intervention on all four cases before the European Court of Human Rights.

Notes:

1. http://www.equalityhumanrights.com/news/2011/july/commission-proposes-re...

2. Email from EHRC to stakeholders on July 12.

3. http://www.equalityhumanrights.com/legal-and-policy/human-rights-legal-p...

4. Registrar Lillian Ladele was effectively given the option of violating her faith and facilitating a civil partnership or losing her employment. Relate Counsellor Gary MacFarlane was effectively given the options of providing counselling to help the sexual relationship of a same sex couple, and thereby violate his faith, or lose his employment.

5. Examples of the pressure exerted include:
http://www.pinknews.co.uk/2011/07/13/equality-commission-explains-compromise-plan-for-gay-and-religious-rights
http://www.pinknews.co.uk/2011/07/21/tuc-attacks-equality-commissions-opt-out-proposals-for-anti-gay-staff

http://www.secularism.org.uk/equality-commission-determined-t.html

6. Article 9 European Convention on Human Rights:

‘1. 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.

2. 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 the protection of the rights and freedoms of others.’