Memorandum by the British Humanist Association
A. THE BRITISH
HUMANIST ASSOCIATION
(BHA)
The BHA represents the interests of the large
and growing population of ethically concerned but non-religious
people living in the UK. It exists to support and represent those
who seek to live good lives without religious or superstitious
beliefs and to educate about Humanism. Humanism is a non-religious
worldview which holds that we should make sense of the world using
reason, experience and shared human values and without reference
to doctrine, dogma, or any supernatural forces.
The BHA has a history of deep commitment to
human rights, equality, good relations and social cohesion, and
an end to irrelevant discrimination. We advocate an open and inclusive
society: one "based on the recognition that people have divergent
views and interests and that nobody is in possession of the ultimate
truth".[26]
We are a member of the Equality and Diversity Forum, and our chief
executive was a member of the DTI's CEHR steering group and the
reference group for the Equalities and Discrimination Law Reviews.
B. THE EQUALITY
STRAND OF
"RELIGION OR
BELIEF"
i. Introduction
The equality strand of "religion or belief"
is a relatively new one—all UK legislation relevant to the
strand has been enacted within the last ten years. In 1998 the
Human Rights Act prohibited discrimination by public authorities
on the grounds of religious or non-religious belief, in 2003 the
Employment Equality (Religion or Belief) Regulations prohibited
discrimination in employment and vocational training, in 2006
part two of the Equality Act prohibited discrimination in the
provision of goods, facilities and services. In all these cases,
the rights of individuals to equal treatment were curtailed in
seriously concerning ways that we hope the committee will address
(we list these in annex two and in section D below, we recommend
that the Discrimination Law Review should remove these exemptions
under any future Act), but the principle behind the legislation
and most of the content has been very much welcomed by the BHA.
This is not solely because of our general commitment to equality
and human rights expressed above, but also because these protections
explicitly apply to humanists and the non-religious.
ii. The non-religious within the "religion
or belief" strand
Both the DfES' and the DCLG's guidance on part
two of the Equality Act make it clear that both those with non-religious
beliefs such as Humanism and the non-religious generally are protected.
The development of case law under the ECHR had already established
that a humanist's Humanism qualified as a "belief" within
the meaning of the term (see annex one for relevant case law).
Indeed, this was taken for granted in one UK case[27]
and in the 2005 decision of the Registrar General of Scotland
that humanist weddings could no longer legally be held to be invalid.
Where inequalities for humanists and the non-religious
persist, it is either because the legal equivalence of religious
and non-religious beliefs has not been properly accepted by public
authorities, including government, or because exemptions have
been granted to certain bodies from equalities law which leave
humanists and the non-religious unprotected. We recommend investigation
of both these problems to the Committee.
iii. Government's faith-based framework
Even though the legal equivalence of religious
and non-religious beliefs is established, the Government and its
agencies continue to operate on the basis of "faith"
too often and we are frequently disappointed by the use of the
word "faith" in preference to the more inclusive "religion
or belief" by Government (including for example, in the very
exchange of letters between the Prime Minister and Ruth Kelly
MP which established the DCLG):
With legislation now in place that makes the
inclusive nature of this equality strand clear, we believe that
the Government, and the DCLG in particular, should be encouraging
the use of the new terminology, or at least making it clear that,
where departments, agencies, working groups etc have responsibility
for work engaging religions, they also have responsibility for
non-religious beliefs.
In section C below we expand on how the CEHR
can adopt this approach.
iv. Exclusion in practice
Our objections to the exclusion of the non-religious
from Government's work around the strand is not merely principled
or abstract—this exclusion effects real disadvantage. Full
details of these can be found in the BHA's first and second submissions
to the Equalities Review, references for which have been sent
to the Committee.
C. WHAT THE
CEHR NEEDS TO
ADDRESS
i. The need for CEHR to recruit expertise
in "religion or belief" as relevant to the non-religious
The CEHR will incorporate ongoing activities
currently being carried out by the three existing equality commissions,
and will inevitably employ a significant number of staff from
the existing commissions. In these circumstances, it will be particularly
important to ensure that, by a process of recruitment of appropriate
additional staff with expertise relating to the "new strands",
including the religion or belief equality strand, and providing
training for existing staff, there is sufficient expertise relating
to religion or belief issues within the staff complement. We are
very aware that, even amongst discrimination lawyers (including
those who specialise in "religious discrimination")
and other equality professionals, there is very little awareness
or understanding of equality issues as they affect people with
non-religious beliefs, so a particular effort needs to be made
to recruit people with this expertise and to ensure that staff
training programmes are properly informed about discrimination
against and exclusion of the non-religious. Like others, we anticipate
that the CEHR will, wherever appropriate, take a themed approach
to its equality and human rights work, rather than focussing on
single strands, but this will still require the appropriate expertise
within the various project teams that are established.
ii. Relevance of human rights as underpinning
the religion or belief strand
We have been pleased to see that the CEHR team
seems committed to the idea of human rights not as a separate
strand but underpinning and integral to all its equality work.
This is particularly important in relation to the religion or
belief strand, where the application of human rights principles
and law seems the most effective way of addressing issues about
the absolute right to freedom of belief (including the rights
of the non-religious and the right to change ones belief), and
the right to manifest ones belief, which is qualified by the need
to protect the rights of others. We hope that the CEHR will lead
a public debate to establish as broad a consensus as possible
about these issues, and one that can be used as the basis for
CEHR's, and hopefully also the government's, approach when particular
issues arise—as they undoubtedly will. It is essential that
the non-religious are included in such a debate.
iii. Concerns over appointment of commissioners
and expertise across the religion or belief strand
It is also essential that the CEHR Commissioners
have appropriate knowledge and experience of all the equality
strands and human rights; indeed this requirement is laid down
in the Equality Act.[28]
We are therefore particularly concerned that the appointment process
for Commissioners has not only ignored the obvious need to ensure
expertise relating to equality issues affecting the non-religious
as well as the religious, but has itself discriminated against
the non-religious. The BHA has made a formal complaint to the
DCLG about this and our letter is appended as annex three to this
memorandum. As a result of this unsatisfactory process, the Commissioners
together will have expertise on all six equality strands, but
for religion or belief, will only have specific expertise relating
to religion. Since this first group of Commissioners will determine
the structure and organisation as well as the early priorities
of the CEHR, this "oversight" will inevitably have a
profound impact on the work of the CEHR for many years to come.
It is worth noting that in the early stages of work towards the
creation of the CEHR, when this work was led by the DTI, it was
fully acknowledged that the process required expertise in issues
relating to both religious and non-religious beliefs. Thus, when
the DTI established the CEHR Task Force, religious and non-religious
beliefs were included as a matter of course. When the much smaller
CEHR Transition Steering Group was established the decision was
taken to include two individuals for the religion or belief strand,
despite the fact that there was only one person for each of the
other equality strands and for human rights. This crucial understanding
seems to have been lost when responsibility for the CEHR passed
from the DTI to the DCLG and new Ministers, which was followed
by an almost total change of staff in the CEHR Transition Team.
We were particularly concerned to be told that, in a discussion
about whether expertise relating to non-religious beliefs needed
to be included in the Commission, the CEHR Chair had commented
that this wasn't an issue as most Commissioners are non-religious.
If anyone had suggested that expertise relating to any of the
other strands, age or gender for example, was not required because
some of the Commissioners were older people, or women, this would
instantly have been recognised as completely unacceptable. It
is no more acceptable for non-religious belief.
iv. Need to engage stakeholders across the
religion or belief strand
The Religion and Belief Consultative Group,
co-founded as a reference group by the two people representing
the religion or belief strand on the CEHR Steering Group[29]
, but now with a wider remit covering a variety of issues important
to religion or belief organisations, is the only national organisation
dealing with equality and related issues that we know of that
includes both religious and non-religious belief organisations.
The Group is hoping to develop a relationship with the CEHR, and
we feel this would be of considerable benefit.
v. Regional and local work
The CEHR will need to bear the same considerations
in mind in its work at regional and local level, and in its grant-making
capacity. Although it is not yet clear how the CEHR will work
in Scotland, Wales and the English regions, we are aware of equality
bodies in these regions and nations that are gearing up with a
view to working with the CEHR. These equality bodies include all
six equality strands, but research commissioned by the CEHR Transition
Team has confirmed that they all include religious and/or interfaith
organisations to cover the religion part of the religion or belief
strand but, (with the exception of Scotland where the situation
has recently changed) currently exclude the non-religious. It
is worth noting that these equality bodies also relate to regional
government, and the non-religious are excluded here as well. The
CEHR will need to ensure that its engagement with stakeholders
at regional and local level includes the non-religious alongside
the religious.
vi. Good relations and religion or belief
The CEHR will not only work on equality and
human rights issues, but also on good relations, where the Equality
Act requires it to "have particular regard to the importance
of exercising the powers conferred by this Part in relation to
groups defined by reference to race, religion or belief".
The CRE focused its good relations work on "race and faith"
and the government, including the DCLG, has also focused its attention
on relations between faiths, for example by support for the Inter
Faith Network, with a complete disregard for the fact that the
vast majority of such work excludes the non-religious. Our experience
of working with Muslim groups and individuals, for example, has
demonstrated the importance of dialogue between the religious
and the non-religious, particularly in light of what seem to be
growing divisions between many of the faiths on one side of the
debate, and the non-religious (now commonly referred to by bishops
and others as "aggressive secularists") on the other.
It is vital that the CEHR works across the whole of the religion
or belief strand, and indeed other strands, in its good relations
work.
D. WHAT THE
DLR NEEDS TO
ADDRESS
i. Single Equalities Act
We would welcome the introduction of a single
and integrated Equality Act. Such an Act will not only make all
law as it relates to discrimination and equality readily accessible
to service providers and employers, it will also represent a single
charter for equal treatment which is better understood by people
and around which a new culture of equality can cohere. It should
include one overarching definition of equality and, except where
there are genuine reasons for maintaining differences between
grounds, we are in favour of harmonising protection "upwards"
with no regression of the protection enjoyed by the individual
citizen on any of the current grounds.
ii. Positive duty
Such a harmonising upwards would obviously include
positive duties but here we add a proviso in the area of religion
or belief. Although we believe that a duty not to discriminate
is essential and that positive duties to promote equality are
an important tool, we have concerns about how a duty to promote
equality of opportunity would work for religion or belief in practice.
Benchmarks for public authorities such as are used for race or
gender, derived from the census, do not exist in any meaningful
sense for religion or belief, not least because wildly differing
answers will be given to the question of an individual's religion
depending on how it is asked,[30]
and we do not see religion or belief as a characteristic that
can be meaningfully treated as analogous to race or gender in
this regard.
The mutability of religion or belief contrasts
with the immutability of gender and race. In addition, religions
and beliefs are almost impossible to categorise. Will we use "Christian"
as our category of choice, or "Protestant", "Methodist"
etc (there are thousands of Christian denominations in the UK),
"Muslim" or "Sufi", "Shia" etc?
iii. "Religion or belief" and employment
We believe the fact that there is no provision
in the Employment Equality (Religion or Belief) Regulations 2003
allowing NGOs to initiate proceedings on behalf of a complainant
is inconsistent with the directive.
The test in the Employment Equality (Religion
or Belief) Regulations 2003 to justify genuine occupational requirement
is less rigorous than in the Directive and legislation on race
and other grounds. We believe this is a serious infringement of
the rights of people not to be discriminated against on the grounds
of their religion or belief, particularly in view of the fact
that large religious organisations are the most likely discriminators.
Already there is DTI funded guidance from the Christian organisation
Faithworks which advises organisations how even their coffee shop
manager post can be reserved for a Christian. In our view, this
is not what was intended by the law.[31]
We believe that the fact that the law prohibiting
discrimination on grounds of religion or belief in Great Britain
is subject to ss. 58—60 School Standards and Framework Act
1998[32]
is a serious infringement of the rights of people not to be discriminated
against on the grounds of their religion or belief and is arguably
inconsistent with the EU Employment Directive. We note that it
is also not very good for schools—the most re-advertised
head teacher posts are those with a religious requirement attached.
iv. Exemptions from equality law
There are currently too many exemptions from
laws prohibiting discrimination on the grounds of religion or
belief (listed in annex two) and we recommend that the DLR remove
these.
We urge that the DLR look at the possibility
of developing the idea of a "genuine service requirement"[33]
in this area, rather than exempting whole classes of organisation
from what should be universally applied principles of equality.
A "genuine service requirement" could provide a test
that depended on the nature of what was being done rather than
the identity or beliefs espoused by the organisation providing
it or the individual doing it, and so minimise the risk that too-wide
an exception was being created.
We urge that the DLR looks at clarifying the
law as it relates to public authorities, and specifically counter
the decision of the courts in the Leonard Cheshire case,[34]
which has undermined the intentions of parliament.
v. The Human Rights Act and resolution of
conflicts of rights
We are very keen to see any Single Equalities
Act premised on universal human rights, and the concept of equal
treatment as a human right.
We urge the ratification of protocol 12 as a
means of extending UK law on equality, and hope that the review
will consider the benefits of ratification.
It is widely agreed that there are tensions
between "religion and belief" and some other equality
strands. There are also tensions within the strand, especially
where organisations, charities, or schools connected with a particular
religion or belief, operate to exclude or disadvantage individuals
of different religions or beliefs. In both cases, these tensions
or conflicting rights arise when organised religions, organisations
with a religious ethos and/or religious individuals claim a right
to discriminate against others on the basis of religious doctrine
and/or the need to ensure that their followers are not offended.
Art. 9.2 of the ECHR[35]
is often quoted to justify this.
We see the promotion of non-discrimination as
being an integral feature of our modern democracy and we note
that religious freedom in the forum externum[36]
of art. 9.2 of the ECHR can be limited to protect "the rights
and freedoms of others". We would recommend to the review
team that the application of this principle may provide resolution
in a number of cases where rights across strands, or indeed rights
within the religion or belief strand, can appear to conflict.
In particular we draw the review team's attention to recent comments
by Lord Nicholls:
But under article 9 there is a difference between
freedom to hold a belief and freedom to express or "manifest"
a belief. The former right, freedom of belief, is absolute. The
latter right, freedom to manifest belief, is qualified. This is
to be expected, because the way a belief is expressed in practice
may impact on others ... The manner in which children should be
brought up is another subject on which religious teachings are
not silent. So in a pluralist society a balance has to be held
between freedom to practise one's own beliefs and the interests
of others affected by those practices.[37]
We believe that limitation of the right to put
into practice a belief that violates the right to non-discrimination
of an individual on a protected ground will often be found to
be legitimate in the context of article 9.2.
We would also recommend that, in drafting law
to further equality and where rights may appear to conflict, some
attention could be paid to where the historic disadvantage lies
in any given conflict. Such an approach, we believe, could also
be of potential value in resolving such conflicts.
26 George Soros: appendix to The Bubble of American
Supremacy (Weidenfeld & Nicolson, 2004). Back
27
re Crawley Green Road Cemetery, Luton, St Alban's Consistory
Court: December 2000. Back
28
Schedule 1, Part 1, Clause 2 of the Equality Act requires the
Secretary of State to "have regard to the desirability of
the Commissioners together having experience and knowledge relating
to the relevant matters" and identifies discrimination on
grounds of religion or belief amongst the "equality strands". Back
29
Mohammed Aziz, and our own Chief Executive, Hanne Stinson. Back
30
Compare the 72% of "Christians" in the 2001 census
with the 69% who professed no religion or never attended religious
services in the recent British Social Attitudes survey. Back
31
See, eg Opinion no. 4-2005 of the EU Network of Independent Experts
on Fundamental Rights: "Churches or religious organisations
may not require from an individual working for them, but whose
occupation presents no relationship to his or her religion or
belief (for instance, a doctor in a catholic hospital), that he
or she shares that religion or belief." Back
32
http://www.opsi.gov.uk/acts/acts1998/80031--m.htm58 Back
33
Perhaps on the Northern Irish model. Back
34
In which the definition of public authority was narrowed in a
away that is arguably inconsistent with the wishes of Parliament. Back
35
"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 for the protection of the rights and
freedoms of others." Back
36
"public space". Back
37
Lord Nicholls at paragraphs 16-17 in R v Secretary of
State for Education ex parte Williamson [2005] UKHL 15. Back
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