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The Right to Discriminate

  • Russell Sandberg (a1) (a2)
Abstract

The first decade of the 21st century has witnessed a number of controversies surrounding the interaction between law and religion in the United Kingdom. In particular, tensions have emerged between laws protecting religious freedom and those which prohibit discrimination on grounds of sexual orientation. In particular, Parliament has repeatedly examined the scope and ambit of exceptions afforded to religious groups which allow them to discriminate on grounds of sexual orientation when specific conditions are met. And these exceptions have reportedly led to tensions within both the Blair and Brown cabinets and rebukes from the Vatican and the European Commission, criticising the exceptions for being too narrow and too broad respectively. The exceptions have also been challenged by way of judicial review, have been applied or commented upon in a number of high-profile cases and have attracted comment in the print and broadcast media. A number of employees have brought claims asserting that new legal requirements promoting equality on grounds of sexual orientation are incompatible with their religious beliefs. This article seeks to explore the legal changes that have occurred in the first decade of the 21st century affecting religion and sexual orientation with particular reference to how courts and tribunals have dealt with clashes between the two. It discusses the extent to which English law allows religious groups and individuals to follow their own beliefs regarding human sexuality.

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2 For an examination of the historical development of laws protecting sexual orientation see chapter 1 of Cretney, S, Same Sex Relationships: from odious crime to ‘gay marriage’ (Oxford, 2006). For examinations of the historical development of laws protecting religion see chapter 1 of Rivers, J, The Law of Organized Religions (Oxford, 2010) and chapter 2 of Sandberg, R, Law and Religion (Cambridge, 2011).

3 With the exception of the period of Mary I's reign when papal authority was restored (1553–1558) and the commonwealth period (1648–1660). See Hill, M and Sandberg, R, ‘Is nothing sacred? Clashing symbols in a secular world’ [2007] Public Law 488, p 489.

4 However, it may be argued that aspects of this favouritism remain today: for example, in relation to concerns about the presence of bishops in the House of Lords and why civil partnerships are not considered to be gay marriages. A textbook example of this favouritism is the law on marriage which continues to see the Church of England and heterosexual unions as the norm.

5 It was only in 1967 that the criminal offence prohibiting homosexual conduct between consenting male adults was repealed in England and Wales by the Sexual Offences Act 1967. Repeal in Scotland came later and in Northern Ireland much later still. See Cretney, Same Sex Relationships, chapter 1.

6 For further analysis of the ‘new’ law regulating religion and its significance see Sandberg, Law and Religion.

7 Other rights are also of importance. Art 12 provides the right to marry and Art 14 provides that the enjoyment of convention rights shall be secured without discrimination.

8 Public Order Act 1986 part 3A, as added by the Racial and Religious Hatred Act 2006; as amended by the Criminal Justice and Immigration Act 2008.

9 Employment Equality (Religion or Belief) Regulations 2003; Employment Equality (Sexual Orientation) Regulations. Prior to 2003, discrimination law covered only race and sex (Race Relations Act 1976; Sex Discrimination Act 1975) as discussed below.

10 Equality Act 2006, part 2; Equality Act (Sexual Orientation) Regulations 2007.

11 There is a debate as to whether the term ‘exception ‘or ‘exemption’ should be used. This article follows the practice of the Equality Act 2010 which refers to ‘exceptions’. This can be contrasted with much of the Parliamentary debates where the use of the term ‘exemption’ was commonplace.

12 There are, of course, several other dimensions to this debate: it is possible to explore the content of the beliefs held, whether they should be held and their theological basis. However, those issues are beyond the scope of this article.

13 See Sandberg, R and Doe, N, ‘Religious Exemptions in Discrimination Law’, (2007) 66(2) Cambridge Law Journal 302 at 302303.

14 Military Service Act 1916, s 2; Promissory Oaths Act 1868; Oaths Act 1978; Abortion Act 1967, s 4.

15 Employment Act 1989, s 11; Motorcycle Crash Helmets Religious Exemption Act 1976, now see Road Traffic Act 1988, s 16.

16 Gray, N and Brazil, D, Blackstone's Guide to the Civil Partnership Act 2004 (Oxford, 2005), p 2.

17 Adoption and Children Act 2002; Domestic Violence, Crime and Victims Act 2004.

18 Dudgeon v United Kingdom (1981) 4 EHRR 149; Smith and another v United Kingdom (2000) ECHR 33985/96.

19 Race Relations Act 1976; Sex Discrimination Act 1975.

20 De Marco, N, Blackstone's Guide to the Employment Equality Regulations 2003 (Oxford, 2004) p 5.

21 Mandla v Dowell Lee [1983] 2 AC 548.

22 Seide v Gillette Industries Limited [1980] IRLR 427.

23 However, most religious groups not protected. The Act did not cover Muslims (JH Walker Limited v Hussain and Others [1996] ICR 291) or Rastafarians, for example (Crown Suppliers (Property Services Agency) Limited v Dawkins [1993] ICR 517).

24 For example, in JH Walker Limited v Hussain, it was held that a ban on holidays during festival of Eid constituted indirect discrimination against Asians.

25 De Marco, Blackstone's Guide to the Employment Equality Regulations 2003, p 7.

26 [2003] UKHL 34.

27 Section 19. The Employment Equality (Sex Discrimination) Regulations 2005 amended s 19. It has also repealed s 6 of the Priests (Ordination of Women) Measure 1993, which buttressed s 19 in the case of the Church of England. The exception is now to be found in Schedule 9 of the Equality Act 2010, as discussed below.

28 Section 6(1). A ‘public authority’ is defined as ‘any person certain of whose functions are of a public nature’ (s 6(3)) and thus may include religious groups and entities within religious organisations. On which see Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another [2003] UKHL 37.

29 The Human Rights Act requires courts to interpret United Kingdom legislation so far as is possible in a manner compatible with the rights outlined in the ECHR and in so doing they must take into account – though not necessarily follow – the decisions of the European Court at Strasbourg. Lord Slynn in R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2001] UKHL 23, para 26 has suggested that courts should only feel under an obligation to follow Strasbourg case law where there is a ‘clear and constant jurisprudence’.

30 As Morritt V-C put it in Aston Cantlow [2001] 3 All ER 393 at para 44. This Court of Appeal judgment was later overturned by the House of Lords: [2003] UKHL 37.

31 As Cretney puts it, ‘The enactment of the Human Rights Act 1998 encouraged the view that “discrimination” of any kind was unacceptable (even though that is not actually what the Act or the convention says)’: Cretney, Same Sex Relationships, p 13.

32 The Human Rights Act 1998 is one of the major catalysts of the increase of focus on religious rights which may be referred to as the ‘juridification’ of religion. See, further, Sandberg, Law and Religion, chapter 10.

33 On which see ibid, chapter 5.

34 R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

35 Eg in R (on the application of X) v Y School [2007] EWHC 298 (Admin); R (on the Application of Playfoot (A Child) v Millais School Governing Body [2007] EWHC 1698 (Admin).

36 Eg R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15; R (on the Application of Swami Suryananda) v Welsh Ministers [2007] EWHC 1736 (Admin).

37 [2008] EWHC 1865 (Admin).

38 Sandberg, R, ‘The changing position of religious minorities in English law: the legacy of Begum’, in Grillo, R et al. (eds) Legal Practice and Cultural Diversity (Aldershot, 2009), p 267; I Leigh, ‘Recent developments in religious liberty’, (2009) 11 Ecc LJ 65.

39 Gray and Brazil, Blackstone's Guide to the Civil Partnership Act 2004, p 2. Whether the Act preceded or followed a similar moral shift is an open question.

40 J Herring, Family Law (third edition, Pearson, 2007) p 31, citing Harris-Short's suggestion that family law judges have taken a ‘minimalist’ approach to the use of the Act given the long suspicion of rights among family lawyers: S Harris-Short, ‘Family law and the Human Rights Act 1998: judicial restraint or revolution’, (2005) 17 Child and Family Law Quarterly 329.

41 See Douglas, G, An Introduction to Family Law (second edition, Oxford, 2004), pp 1415.

42 Crabbe gives the additional example of the definition of ‘family’ in section 12 of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920: although in Gammans v Ekins [1950] 2 KB 328 it was held that it would be ‘an abuse of the English language’ to hold that a childless couple masquerading as husband and wife constituted a ‘family’; over twenty years later, in Dyson Holdings Ltd v Fox [1976] QB 503, childless cohabiters were held to constitute a family: Lord Denning MR held that the decision in Gammans v Ekins could ‘no longer be supported’ since ‘owing to the lapse of time, and the change in social conditions, the previous decision is not in accord with modern thinking’ and James LJ warned against applying ‘a precedent slavishly in circumstances to which it is not appropriate having regard to reality’: at 509 and 512. See Crabbe, V, Legislative Drafting (London 1993), p 112.

43 See, in particular, Ghaidan v Godin Mendoza [2004] UKHL 30 in which the House of Lords held that the words ‘living with the original tenant as his or her wife or husband’ in the Rent Act 1977 should be reinterpreted to include a person in a same-sex partnership in order to be compatible with Arts 8 and 14 ECHR, following the similar decision of the European Court in Karner v Austria [2003] ECHR 40016/98. Compare this with the decision of the House of Lords in Fitzpatrick v Sterling Housing Association Limited [2001] 1 AC 27 prior to the incorporation of Art 8, in which it was held that a homosexual partner could accede to the tenancy but only as a member of the deceased's ‘family’ and not as a person living with him ‘as his husband or wife’ since those words were gender-specific. See Lowe, N and Douglas, G, Bromley's Family Law (tenth edition, Oxford, 2007), pp 11021104.

44 Douglas, G, An Introduction to Family Law (second edition, Oxford, 2004), p 54.

45 See R v Pearce [2001] EWCA Crim 2834, [2002] 1 WLR 1553 concerning the definition of spouse in respect of the competence and compellability of witnesses in criminal proceedings.

46 For further evidence of this trend see M v Secretary of State for Work and Pensions [2003] EWCA Civ 1343, concerning the definition of ‘family’ in the Child Support (Maintenance Assessment and Special Cases) Regulations 1992. See also the discussion in Saunders v Garrett [2005] WTLR 749. See M Hill, ‘Rent Asunder: Westminster's War on Marriage’, paper presented at Tenth Anniversary Conference, Centre for Law and Religion, Cardiff University, 11–12 March 2008, available from <http://www.ecclaw.co.uk/articles.php>.

47 The significance of the ECHR in the legislative development of English law has accelerated post-incorporation, ‘though perhaps not as much as some anticipated’: Lowe and Douglas, Bromley's Family Law, p 24.

48 Goodwin v United Kingdom [2002] ECHR 28957/95, (2002) 35 EHRR 447.

49 Bellinger v Bellinger [2003] 2 AC 467.

50 See S Gilmore, ‘The Gender Recognition Act 2004’ [2004] Family Law 741.

51 He notes that the at the time of the 2001 census, there were more than four million people living in a opposite sex relationship without marriage, ‘a significant group, often unknowingly exposed to the serious risk of hardship and injustice because their relationship was only given very restricted legal recognition’. In contrast, he notes that ‘the number cohabiting in same sex relationships was much smaller’: Cretney, Same Sex Relationships, p 15.

52 Cretney comments that this may be because ‘unmarried different sex couples had no well organised pressure groups pressing their interests’. However, he also notes that priority may have been given to same-sex unions on the basis that it can be argued that heterosexuals have the option of marriage. See ibid, p 16. It is also likely that priority was given to same-sex unions as a result of judicial activism under the Human Rights Act 1998.

53 Civil Partnership Act 2004, s 1(1).

54 See also Edge, P and Corrywright, D, ‘Including religion: reflection on legal, religious and social implications of the developing ceremonial law of marriage and civil partnership,’ (2011) 26(1) Journal of Contemporary Religion 19 and Hill, M, ‘Church, state and civil partners: establishment and social mores in tension’ in Doe, N and Sandberg, R (eds) Law and Religion: new horizons (Leuven, 2010) p 57.

55 Jacqui Smith, HC Deb 9 November 2004 c 776. This has been recognised by the courts: see Wilkinson v Kitzinger [2006] EWHC 2022 (Fam), where it was noted that the Act bestows upon civil partners ‘effectively all the rights, responsibilities, benefits and advantages of civil marriage save the name’ (at para 121). Compare, however, the words of the then Deputy Equality Minister Meg Munn, who launched a campaign to promote awareness of the Act at Westminster registry Office in September 2005 with the declaration that there would be ‘no legal difference between a civil partnership and a marriage’. See Cretney, Same Sex Relationships, p 19.

56 Jacqui Smith, HC Deb 9 November 2004 c 776.

57 This was perhaps an appropriate compromise but it ducked the question of what the essence of a civil partnership is. It is also questionable given that the current legislation on marriage and divorce is not universally regarded as being fit for purpose in the 21st century.

58 The restrictions on who can enter a civil partnership match those for marriage but for the requirement that the partners must be of the same sex. See Civil Partnership Act 2004, ss 3 and 4. Civil partners must be over 16 years old. Those under 18 years old need parental consent. They must not be married or already be a civil partner. They must not be within the prohibited degrees of relationship. The formation of a civil partnership is analogous to a civil wedding but for the fact that whilst in a wedding ceremony it is the exchanging of vows that forms the marriage (Marriage Act 1949 s (1), s44 (3)), a civil partnership is technically formed once both partners have signed the civil partnership document (Civil Partnership Act 2004, s 2(1)). However, note Cretney's comment that ‘in practice Civil Partnership Registrars will often include an exchange of words of mutual commitment by the parties’: Cretney, Same Sex Relationships, p v.

59 Civil Partnership Act 2004, s 1(3).

60 Gray and Brazil, Blackstone's Guide to the Civil Partnership Act 2004, p 25.

61 See Hill, ‘Church, state and civil partners’, p 57.

62 Matrimonial Causes Act 1973, s1(2) (a).

63 Although a relationship with a third party may constitute the ground of ‘behaviour’ under s 44(1) of the Civil Partnership Act 2004: see Lowe and Douglas, Bromley's Family Law, p 301 and Gray and Brazil, Blackstone's Guide to the Civil Partnership Act 2004, p 27.

64 Owing to the incapacity of either party to consummate or that it has not been consummated due to the respondent's wilful refusal to do so: Matrimonial Causes Act 1973, s 12. Section 12 also provides that a marriage may be voidable if one of the parties was suffering from a communicable venereal disease at the date of the marriage. See Lowe and Douglas, Bromley's Family Law, p 79.

65 See Civil Partnership Act 2004, s 50.

66 See Hill, ‘Church, state and civil partners’, p 57. For a different view, see J Humphreys, ‘The Civil Partnership Act 2004, same-sex marriage and the Church of England’, (2006) 8 Ecc LJ 289.

67 Cretney, Same Sex Relationships, p 34. Support for this can be found in the legislative history, in which it is stated: ‘There is no provision for consummation in the Civil Partnership Bill. We do not look at the nature of the sexual relationship, it is totally different in nature’: Baroness Scotland, HL Deb 17 November 2004 c 1479. See also the judgment of the European Court of Human Rights in Burden v United Kingdom, which despite upholding the prohibition on sisters entering a civil partnership proclaimed that ‘Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature’: [2008] ECHR 13378/05, para 65.

68 A Pastoral Statement issued by the House of Bishops of the Church of England on 25 July 2005 stated that the Act left ‘entirely open the nature of the commitment that members of a couple chose to make to each other when forming a civil partnership. In particular, it is not predicated on the intention to engage in a sexual relationship’.

69 Cretney, Same Sex Relationships, p 22.

70 Ibid, p 23.

71 As Cretney puts it, in a wedding ‘you have to say that you are taking your partner as your wife or husband, and those two nouns historically attracted almost universal recognition. But this is not true of “civil partnership” which is a creature of the twentieth and twenty-first centuries’: Cretney, Same Sex Relationships, p 26.

72 This vagueness poses obvious problems for religious groups and believers in terms of potential conflicts with their beliefs. If it is unclear what a civil partnership is, then it is likely to be unclear whether there is doctrinal incompatibility. See, in particular, the decision in McClintock v Department of Constitutional Affairs [2008] IRLR 29, in which a Justice of the Peace wished to be exempt from obligations under the Civil Partnership Act which may have led him to place children with homosexual couples. His claim of religious discrimination was unsuccessful because McClintock had never made it plain that his objection was underscored by conscientious or religious objection.

73 Cretney, Same Sex Relationships, p 25.

74 Marriage Act 1949, s 45 A(4). Civil marriages can either occur in a registrar office or in approved premises. A building with a recent or continuing religious connection cannot be approved premise: Marriages and Civil Partnerships (Approved Premises) Regulations 2005/3168, Sch 1.

75 Civil Partnership Act 2004, s 2(5).

76 S 6(1)(b). That is, premises which are either ‘used solely or mainly for religious purposes; or ‘have been so used and have not subsequently been used solely or mainly for religious purposes’: s 6(2).

77 See Cretney, Same Sex Relationships, p 25.

78 Jacqui Smith, HC Deb 9 November 2004 c 776.

79 To be more accurate, they have religious choices: see Lowe and Douglas, Bromley's Family Law, pp 59–60.

80 Evidence suggests that such a choice would be welcomed: a survey of same-sex couples found that a significant minority wanted a religious element in a civil partnership celebration: P Readhead, Same-Sex Couples Tie the Knot (ESRC, 2006).

81 In the same way as a religious ceremony (‘a blessing’) may follow a civil wedding, a similar religious ceremony could follow a civil partnership ceremony. However, in both cases, it is the civil ceremony which is legally binding: Marriage Act 1949, ss 45(2) and 46. The provision and form of such a religious ceremony is a matter of choice for the religious group asked. See the Pastoral Statement issued by the House of Bishops of the Church of England on 25 July 2005 that ‘affirms’ that clergy of the Church of England should not provide services of blessing for those who have registered a civil partnership but ‘where clergy are approached by people asking for prayer in relation to entering into a civil partnership they should respond pastorally and sensitively in the light of the circumstances of each case’. For a critique see B Lewis, ‘What services are Clergy permitted to offer couples in same sex relationships in the Church of England?’ <http://thinkinganglicans.org.uk/uploads/brianlewis.html>.

82 See the Resolution passed in 2008 by the General Assembly of Unitarian and Free Christian Churches (Resolution 7: available at <www.unitarian.org.uk/info/ga-resolutions2008.shtml>) and the Minutes of the 2009 Yearly Meeting of the Society of Friends (Quakers) (minute 23: available at <www.quaker.org.uk/sites/default/files/YMG-2009-minutes.pdf>.

83 The amendment was tabled by Lady Campbell of Surbiton, Lady Neuberger, Lady Noakes and Lord Ali. As Baroness Neuberger explained, the amendment ‘would mean a civil partnership taking place within a Quaker meeting house, for example … followed by some kind of faith-based commitment ceremony, the second following materially from the first’. HL Deb 25 January 2010 c 1199.

84 At c 1201.

85 Bishop of Winchester at c 1202. See also Lord Hunt of Wirral at c 1206. Note also the Bishop of Chichester's concern that the removal of the ban would put pressure ‘not on the national institution of the Church of England but on the incumbents of the parishes and lead to widespread disarray throughout the Church of England’ (c 1203).

86 The Minister concluded that the amendment was ‘not a workable solution to this issue’ since it would ‘lead to inconsistencies with civil marriage, have an unexplored impact on devolved Administrations and lead to confusion on what is permitted and what is required’ (Baroness Thornton at c 1208).

87 Equality Act 2010 s 202(1) omits sections 6(1)(b) and (2) of the Civil Partnership Act. The ban on religious services whilst the registrar if officiating under s 2(5) is untouched.

88 Equality Act 2010 s 202(3) states that these Regulations ‘may provide that premises approved for the registration of civil partnerships may differ from those premises approved for the registration of civil marriages’ which may include in particular to ‘religious premises’. They may ‘make provision in relation to religious premises that differ from provision in relation to other premises’ and may ‘make different provision for different kinds of religious premises’.

89 Equality Act 2010 s 202(4) would insert this definition into a new section 6A(3A). Definitions of ‘civil marriage’ and ‘religious premises’ would be inserted as 6A(3B) and 6A(3C) respectively.

90 Baroness Royall of Blaisdon, HL Deb 23 March 2010 c 871.

91 The Coalition's new Equality Strategy, published in December 2010, said that it was talking with ‘representatives of faith and lesbian, gay and bisexual groups, about what the next stage should be for civil partnerships, and including how some religious organisations can allow same-sex couples the opportunity to register their relationship in a religious setting if they wish to do so’: HM Government, The Equality Strategy – Building a Fairer Britain (December 2010), p 21.

92 See the comments of Lord Lester at Third Reading: ‘When we introduced the Civil Partnership Bill, we used civil marriage as the analogue to create civil partnership. What we are doing here is allowing a religious aspect to civil partnership, because there cannot be a religious marriage. In the longer term, one may need to look at the consequences for civil marriage in relation to religion’ HL Deb 23 March 2010 c 868.

93 S Cretney, Same Sex Relationships, p 37.

94 As shown by the cases of Ladele v London Borough of Islington [2009] EWCA Civ 1357 and McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 discussed below.

95 If s 202 of the Equality Act 2010 ever comes into force.

96 For a full account, see I Hare, ‘Crosses, crescents and sacred cows: criminalising incitement to religious hatred’, [2006] Public Law 521; and K Goodall, ‘Incitement to religious hatred: all talk and no substance’, (2007) 70(1) MLR 89.

97 S 29A defines religious hatred as ‘hatred against a group of persons defined by reference to religious belief or lack of religious belief’.

98 S 29AB defines hatred on grounds of sexual orientation as ‘hatred against a group of persons defined by reference to sexual orientation (whether towards persons of the same sex, the opposite sex or both)’.

99 The 2008 Act does make some minor amendments which apply to both religious hatred and hatred on the grounds of sexual orientation. Some of the differences between the enforcement of the crimes in England and Wales and Scotland are deleted, the sentencing is altered and the National Assembly for Wales is now exempted, remedying an anomaly in the Racial and Religious Hatred Act 2006 which provided an exemption for the Westminster and Scottish Parliaments.

100 The Government had wanted the offence to be charged either when the defendant had the intention to stir up religious hatred or was being reckless as to whether religious hatred would be stirred up thereby. The Government had also wanted to include ‘abusive or insulting’ words or behaviour in addition to ‘threatening’. See Addison, N, Religious Discrimination and Hatred Law (London, 2007), pp 139141.

101 Section 29J provides: ‘Nothing in this Part shall be read or given effect in a way that prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs of practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.’ However, the value of this statement is open to debate.

102 Dr Evan Harris noted that: ‘On Second Reading, the Secretary of State agreed that it was right that a new offence of inciting homophobic hatred should be closer to the religious hatred end rather than the race hate end of the spectrum, in that such incitement would have to be intentional, and the provision should deal with threatening words and behaviour only’: HC Deb 9 January 2008 c 448.

103 Inserted section 29JA reads, ‘In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred’. The clause was requested, inter alia, by the Church of England and the Roman Catholic Church in a rare joint submission to the Public Bill Committee. Jim Dobbin suggested that the clause in relation to sexual orientation is ‘narrower and less far reaching’: HC Deb 9 January 2008 c 450. In the end, the clause was inserted into the Bill by the House of Lords against the wishes of the Government.

104 As Sedley LJ held in Eweida v British Airways [2010] EWCA Civ 80 at para 40, whilst all of the other protected characteristics apart from religion or belief ‘are objective characteristics of individuals; religion and belief alone are matters of choice’.

105 In 2000, EU Directive 2000/78/EC stated that, in addition to existing prohibition against discrimination on grounds of sex and race, discrimination on grounds of sexual orientation, age, disability and religion or belief ‘should be prohibited throughout the Community’.

106 Employment Equality (Religion or Belief) Regulations 2003 SI 2003/1660; Employment Equality (Sexual Orientation) Regulations 2003 SI 2003/1661.

107 Equality Act 2006, part 2; Equality Act (Sexual Orientation) Regulations 2007 SI 2007/1263.

108 The first issue has already been examined in depth in earlier editions of this journal. See, in particular, A Hambler, ‘A no-win situation for public officials with faith convictions’, (2010) 12 Ecc LJ 3; L Vickers, ‘Religious discrimination in the workplace: an emerging hierarchy?’, (2010) 12 Ecc LJ 280; and R Sandberg, ‘Laws and religion: unravelling McFarlane v Relate Avon Ltd’, (2010) 12 Ecc LJ 361.

109 See also the decision in McClintock v Department of Constitutional Affairs [2008] IRLR 29, discussed in Sandberg, Law and Religion, pp 106–107.

110 [2009] EWCA Civ 1357.

111 [2010] EWCA Civ 880.

112 [2009] EWCA Civ 1357 at para 51.

113 Bristol County Court (Case Numbers 9BS02095 and 9BS02096) Judge Andrew Rutherford.

114 See para 37: ‘on a proper analysis of the defendants’ position on the facts of this particular case the only conclusion which can be drawn is that the refusal to allow them to occupy the double room which they had booked was because of their sexual orientation’.

115 See para 52: ‘The Sikh who would have been required to wear a crash helmet when riding a motorbicycle if a specific exemption had not been created by the Road Traffic Act 1998. This would have discriminated against his religion but could arguably be justified on the grounds of road safety. The requirement to wear a particular uniform at work may cut across a person's religious beliefs but may be justified again on health and safety grounds or to promote a particular corporate identity’.

116 Much of the case turned on the fact that they were civil partners and under discrimination law no distinction should be made between married couples and civil partners. It would be interesting to see if the same decision would be reached if the claimants were a same-sex couple who had not entered into a civil partnership.

117 Permission to appeal was granted by the first instance judge in the County Court: see paras 62 and 63.

118 Exceptions from laws prohibiting discrimination on grounds of sex and religion or belief are also provided for religious groups and employers. For an analysis of the law before the Equality Act 2010, see R Sandberg and N Doe, ‘Religious exemptions in discrimination law’, p 302. For analysis of the law under the Equality Act 2010, see Sandberg, Law and Religion, chapter 6.

119 Sch 9, para 2.

120 Sch 23, para 23.

121 Employment Equality (Sexual Orientation) Regulations 2003, reg 7(3) and Employment Equality (Sexual Orientation) Regulations 2007, reg 14.

122 As were other amendments such as the amendment tabled by Lord Alli which would have removed the ‘unpleasant and spiteful’ employment exception in order to ‘offer priests the same employment protections in relation to their sexuality as other members of society’. See HL Deb 25 January 2010 c 1198.

123 ‘The Government's intention is not and never has been to narrow the scope of the existing exception’: Baroness Royall of Blaisdon at c 1214.

124 See for instance the comments of Baroness O'Cathtrain at c 1212: ‘If the Government's intention was to maintain the status quo, as they have said continuously since April 2009, why not use the same wording? After all, it has been in use without difficulty since 1975, when it was incorporated in the Sex Discrimination Act. By tinkering, they have caused enormous concern among religious groups. It is essential that the wording is returned to what it was. All the religious groups and their lawyers say that the result of my amendments would be the retention of the status quo. That is what we want-nothing more and nothing less’.

125 See F Cranmer, ‘Parliamentary Report’, (2010) 12 Ecc LJ 229, pp 233–234.

126 A previous challenge in R (Amicus MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 was unsuccessful on the basis that it was clear from the parliamentary material that the exceptions were intended to be of very narrow scope, tightly drawn and were to be construed strictly. See para 103.

127 See para 2.

128 Equality Act 2010 Explanatory Notes para 799.

129 [2007] Employment Tribunal, judgment 17 July 2007 (Case No 1602844/2006).

130 The organised religion was the Church of England and referring to the job application, job description and associated documents, the Tribunal concluded that the post fell within that small number of posts that were open to persons who were not clergy but which were nevertheless protected. See paras 100–102 of the judgment.

131 She further clarified that ‘our position has always been that for specifically religious work-as a vicar, priest, rabbi or imam-religious organisations would be exempt from non-discrimination law. A religious organisation cannot discriminate against gay people or women when it hires a bookkeeper, but it can when choosing a minister of religion’. HC Deb 4 February 2010 c 468.

132 See also the comments of Baroness Royall of Blaisdon who stated that ‘Employment “for the purposes of an organised religion” means a post, such as a minister of religion, involving work for a church, synagogue, mosque or temple. Ministers of religion are clearly in employment, “for the purposes of an organised religion” … The small number of posts outside the clergy to which paragraph 2 applies are those that exist to promote or represent an organised religion or to explain the doctrines of the religion. I should like to clarify that this does not mean that the post must involve only one or more of those activities, but one or more of them must be intrinsic to the post. By “representing” the religion, we mean acting or speaking for, and with the authority of, those in leadership within the religion. We therefore intend senior employees with representational roles, such as the secretary-general of the General Synod and the Archbishops’ Council of the Church of England, to be within the definition. A further example is that of a senior lay post at the Catholic Bishops’ Conference charged with acting on behalf of bishops when contributing to public policy developments. These are both roles where the emphasis is more representational than promotional. There will be similar such roles in other organised religions. An example of a post that exists more to promote the religion is that of a missionary working for a church in this country. A church youth worker who primarily organises sporting activities would be unlikely to be covered by the exception. However, a youth worker whose key function is to teach Bible classes probably would be covered, because explaining the doctrines of the religion would be intrinsic to the role … It is certainly not our intention that the exception should apply to employees such as administrative staff, accountants, caretakers or cleaners … In addition, the exception would not apply to most staff working in press or communications offices, although senior and high-profile roles within such offices that exist to represent or promote the religion would probably be within its scope’: HL Deb 25 January 2010 cc 1215–1216.

133 [2004] EWHC 860.

134 Richards J gave the example that ‘employment as a teacher in a faith school is likely to be “for purposes of a religious organisation” but not “for purposes of an organised religion”’ (para 116).

135 It is difficult to disagree with the words of the Archbishop of York in response to Baroness Royall of Blaisdon's speech quoted above: ‘When I heard the Leader of the House describing what may be exempt, I said to myself, “My gosh, here comes a barrage of endless tribunals”’: Archbishop of York, HL Deb 25 January 2010 c 1218.

136 Equality Act 2010, Schedule 9 Para 2(5).

137 In R (Amicus MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 Richards J stated that that these requirements imposed ‘very real additional limitations’ and suggested that both tests were objective (para 117).

138 The absence of a reference to proportionality also raises the question of whether or not the exception is broader than that permitted under EU law. As the Explanatory Memorandum on the EU Directive makes plain, a ‘double test of a justified aim and proportionate means of reaching it … is required’: European Commission, Proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation, Com (2008) 426 2008/0140, 8.

139 Ibid.

140 See the comments of Baroness Butler-Sloss: ‘The introduction of the word “proportionate” in the two regulations inevitably changes the legal position. The word “proportionate” must mean something, and something more than the previous position because it was not there before … Once you put a new word in it must be different. If this paragraph is challenged in the courts as a matter of interpretation or construction, a judge would … be bound to find that there was a change. The effect would be to cause major problems for churches. There might be a situation where a church met the organised-religion test but could still lose a legal challenge in a particular case if a litigant argued that their action was disproportionate in his or her situation’: HL Deb 25 January 2010 cc 1219–1220. See also the concerns of the Bishop of Winchester at c 1227: ‘adding the word “proportionate” now is likely to change the interpretation that the courts will make of this legislation. It will require the courts to inquire into the precise nature of the particular religious doctrines in order to discover what is the minimum necessary to comply with them’.

141 Baroness Royall of Blaisdon at c 1235. This analysis was supported by Lord Lester of Cornhill, who suggested that the removal of the reference to proportionality would have no affect since proportionality was always part of the definition as it was required under EU law: ‘It is the law under European law and it is the law of the land. Proportionality is required whether they like it or not’ (c 1223). However, contrary to the view of Baroness Royall, Lord Lester did seem to suggest that the removal of the reference to proportionality would make a difference to the scope of the exception, noting that: ‘Removing proportionality here, as these amendments seek to do, would mean that any religious organisation could implement the requirements without a sense of proportion and in breach of the general principle of European law’ (c 1223). These two quotes are difficult to reconcile. Lord Lester's contribution later on in the debate seemed to suggest that removal would make a difference but that this difference would have no legal affect since the provision would need to be read in light of EU law which would mean that the proportionality requirement would be read back in: ‘Of course there is a difference in the wording. But in each case, under the regulations and now, the European principle of proportionality has to be complied with. Therefore, it is highly beneficial that the law now makes it clear in the current wording, which is why the principle of proportionality is clearly spelt out. It does not change anything in existing law, since it was always the case, as the Amicus case demonstrates, that any exception must be strictly construed in accordance with European law’ (c 1225).

142 As Baroness Deech put it, ‘Court intervention in religious matters has not worked well. If, according to European law, we must be proportionate, writing that into the legislation is unnecessary because it is there anyway’ (c 1230).

143 Indeed, in the case of some faiths it is further complicated by the lack of a definition of membership See the findings of the Colloquium of Anglican and Roman Catholic Canon Lawyers in J Conn, N Doe and J Fox (eds), Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law (Rome, 2005) and P Colton, ‘The pursuit of a canonical definition of membership of the Church of Ireland’, (2007) 10 Ecc LJ 3–33.

144 [2007] Employment Tribunal, judgment 17 July 2007 (Case No 1602844/2006).

145 In that case, it was held that ‘it would be unduly restrictive to consider the Church of England as being purely the Diocese of Hereford for the purposes of the interpretation of this regulation’: para 104.

146 Forbes v Eden (1867) LR 1 Sc & Div 568. See also General Assembly of the Free Church of Scotland v Lord Overtoun [1904] AC 515. See Sandberg, Law and Religion, chapter 4 and Rivers, J, The Law of Organized Religions (Oxford, 2010), p 73.

147 HH Sant Baba Jeet Singh Maharaj v Eastern Media Group Ltd [2010] EWHC 1294 (QB) at para 5.

148 [2007] Employment Tribunal, judgment 17 July 2007 (Case No 1602844/2006).

149 Since the first two tests were met in that case, it can be assumed that the exception could have been relied on if Reaney had not met the requirement (eg if he had not made an assurance that he would be celibate).

150 This is especially clear in R (Amicus MSF Section) v Secretary of State for Trade and Industry [2004] EWHC 860 and the Explanatory Notes to the Equality Act 2010.

151 In relation to sexual orientation discrimination this is defined as ‘… an organisation the purpose of which is’ – ‘to practice a religion or belief,’ ‘to advance a religion or belief,’ ‘to teach the practice or principles of a religion or belief,’ or ‘to enable persons of a religion or belief to receive any benefit, or to engage in any activity, within the framework of that religion or belief’: Para 2(1); 2(11)

152 Para 2(2).

153 The term ‘public authority’ is defined in section 150 of the Act as those which are specified in Schedule 19.

154 Cardinal Cormac Murphy O'Connor, then head of the Roman Catholic Church in England and Wales, wrote to the Cabinet asking for an exception. However, whilst the then Prime Minister Tony Blair was reportedly in favour of an exception, he was outmanoeuvred by his Cabinet colleagues.

155 Regulation 15 of the 2007 Regulations provided an exception that ran until 31 December 2008.

156 The litigation concerned the exception found within Regulation 18 of the 2007 Regulations which allows charities to discriminate on ground of sexual orientation if it is ‘in pursuance of a charitable instrument’. Catholic Care sought the consent of the Charity Commission to change their charitable object so that they could enjoy this exception. In Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales [2009] Charity Tribunal CA/2008/0003 (1 June 2009), the Charity Tribunal refused to give consent to this. The matter then went to the High Court ([2010] EWHC 520), where Briggs J concluded that the Charity Tribunal's interpretation of reg 18 of the 2007 Regulations was incorrect and directed that the question be remitted to the Charity Commission to decide ‘directing itself in la in accordance with the principles set out in this judgment (para 111). The Charity Commission duly reconsidered the matter; again rejecting Catholic Care’ attempt to change its Governing Document ([2010] Ch Comm E & W final determination (21 July 2010)). At time of writing, a further appeal to the Upper Tribunal is awaited.

157 The Coalition Government has no plans to change this. See the comments of Baroness Neville-Jones: ‘We are certainly committed to … allowing people such freedom to hold religious beliefs. However, we have [to] strike the right balance and sure that we do not allow discrimination on any grounds. When it comes to offering public services, the law of the land must be obeyed ’: HL Deb 8 July 2010 c 336.

158 Para 2(7)–(9).

159 Compare the Civil Partnership Act 2004 (until s 202 of the Equality Act 2010 comes into force).

160 [2009] EWCA Civ 1357.

161 [2010] EWCA Civ 880.

162 HM Government, The Equality Strategy, pp 6–8.

163 See further Sandberg, Law and Religion, especially chapter 10.

164 HM Government, The Equality Strategy, p 3.

1 This article is based upon the text of a public lecture delivered on 3 June 2009 as part of the Ecclesiastical Law Society's London Lecture Series and papers delivered at a workshop on ‘Religion, Discrimination and Accommodation’ funded by the AHRC / ESRC Religion & Society Programme in Newcastle on 5 June 2008, a seminar on ‘Role of Religion and Belief in a “Secular” Society’ organised by the Equality and Human Rights Commission in Lancaster on 28 April 2009 and a meeting of the Interfaith Legal Advisers Network convened by Cardiff University's Centre for Law and Religion at Lambeth Palace, London on 1 March 2010. I am grateful to the organisers and attendees of these events whose comments have undoubtedly improved the quality of the article. The feedback of my colleagues at the Centre for Law and Religion and students on the LLM in Canon Law at Cardiff has also been invaluable.

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Ecclesiastical Law Journal
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  • EISSN: 1751-8539
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