Freedom of religion: can protection against persecution justify the infringement of the right to equality?

September 13 2021

Malcolm Bishop QC recently spoke at the Commonwealth Law Conference in the Bahamas on the topic of Freedom of religion: can protection against persecution justify infringement of the right to equality? Please find below a copy of his speech.  

 

Freedom of religion: can protection against persecution justify the infringement of the right to equality? 

God and the Law - Malcolm Bishop Q.C.  For the Commonwealth Law Conference in Nassau, the Bahamas, 2021

The title of this talk is God and the law, not the law of God.

To answer the difficult question posed in the session title it is perhaps helpful is to set the scene, by sketching how the law deals with religious freedom in England and Wales and the Commonwealth Caribbean, and how these laws affect the equality rights of their citizens.

When you think about it, religion and law permeate nearly every aspect of daily life. For many, religious codes regulate what to wear, how to prepare food and indeed what food to eat, whether to drink alcohol, consent to blood transfusions, and how and with whom to have sex, to name but a few. Because the law is concerned with the reality of life and religion with how that life should be lived, the one is inextricably intertwined with the other.

Let’s begin by setting out a brief account of the law’s relationship to religious belief in England and Wales, before turning to the situation in the Caribbean.

The European Convention

Let’s start with the Second World War, with its mass slaughter on the battlefield, in the gas chambers, and nuclear bombs

The world rightly said, never again. But how to ensure such atrocities could never again take place?

Enter the UN Charter signed in 1945. This provided that the purposes of the UN included ‘promoting and encouraging respect for human rights and fundamental freedoms for all without distinction as to race, sex, language or religion’. Further, the UN Declaration of Human Rights which followed in 1948 by Article 18 provided a right of ‘freedom of thought, conscience and religionwhich included the right to manifest ones religious belief in teaching, practice, worship and observance’. And to make assurance doubly sure, Article 2 provided that everyone was entitled to enjoy the rights set out in the Declaration ‘without distinction of any kind, such as race, language, sex, religion…’

In Europe these high ideals were given teeth by the enactment of the European Convention on Human Rights and the creation of the European Court of Human Rights at Strasbourg. Although drafted by a team of British lawyers, the Convention was not incorporated into our domestic law. This meant applicants would have to trek to Strasbourg to enforce the rights protected by the ECHR, including Article 9 which enshrined and guaranteed the right to freedom of religion.

No doubt that was why the Labour Government of 1997 entitled the White Paper which accompanied it’s Human Rights Bill ‘Rights brought home’. Thanks to the Human Rights Act, it would no longer be the case that applicants would need to go to Strasbourg. Individuals would be able to bring their claims and have them heard in London, Edinburgh and Belfast, and indeed anywhere in-between.

Let’s now pause to look at how the law deals with religion in a few specific areas in England and Wales, beginning with criminal law.

Criminal law

The law attempts to tread a delicate path between, on the one hand permitting freedom of speech, and on the other, protecting others from insult. Take the Rev Blake, a C of E vicar who thought he might liven up a concrete pillar by writing a biblical quotation on it. His defence was rather unusual. He said he was carrying out the instructions of God, and God being the ultimate owner of all, was the only one who could consent to, or prohibit the damage. The Court decided that  believing you had the authority of God, no matter how strongly or sincerely held, did not amount to a defence under English law.

Education

Turning next, to education.

Article 2 of the First protocol to the Human Rights Act provides:

“No person shall be denied the right to education. On the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions”

Now taken at face value that would require the taxpayer to fund a school dedicated to the beliefs of flat earthers. Well perhaps so, but not in England and Wales, because this principle is given effect only insofar as it is “compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.” (You can see the Treasury’s thumb prints all over that particular reservation).

The underlining premise of this Article which seemed to guarantee that children be educated as their parents wished, provided it did not cost too much, was considered in A v Headteacher and Governors of Lord Grey’s school [2006] AC 363 where Lord Bingham held that although the purpose of the Article was to guarantee fair and non-discriminatory access to existing state education, the guarantee “was a weak one, and deliberately so. There is no right to education of a particular kind or quality, other than that prevailing in the state…there is no Convention guarantee of education at or by a particular institution…the test as always in the Convention is a pragmatic one  … have the authorities acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils”. So it follows that flat earthers or others cannot insist that their children be educated in accordance with their beliefs at public expense.

To be educated, for most of us, you’ve first got to get into a school. What happens if you don’t have the right qualifications, not because you’re not smart enough, but because you have the wrong parents?

In R(E) v Governing Body of JFS and ors [2009] 1WLR 2353, which went all the way to the Supreme Court, F who was Jewish by birth wanted to send his son to the JFS, a voluntary aided school. But it was oversubscribed. Under its admissions policy it gave preference to Jewish children recognized as such by the office of the Chief Rabbi (‘OCR’). But this father had married a gentile who had converted to non-Orthodox Judaism and so according to the OCR the child was not Jewish because Jews derive their lineage through their mother. So a  Judicial Review was mounted citing the Race Relations Act 1976 on the basis that, under section 3 of that Act this kind of discrimination was based on ‘ethnic origins’. The full panoply of our highest court was brought to bear on this sensitive issue. Nine lords and ladies of appeal comprised the Supreme Court which held that the school’s admissions policy constituted direct race discrimination. It was irrelevant that the refusal had a benign motive – namely adherence to the tenets of Orthodox Judaism gong back thousands of years. These did not trump the statute.

By a majority the court also found indirect discrimination because although the policy pursued a legitimate aim it had given no consideration to the effect it could have on the claimant’s son or whether its aim could be achieved by ‘other unspecified’ means.

Employment

 We all work for a living, or at least pretend to. Some workers wish to demonstrate their faith by wearing recognized symbols. One of these was Ms Eweida a check-in assistant with British Airways (‘BA’). She was a Christian. She wished to wear a cross on her uniform. “Not allowed!” said BA. It does not conform to our uniform code. The matter went to the Employment Tribunal and her claim for indirect discrimination failed in the domestic courts because she had not shown that Christians as a group were put at a disadvantage by the uniform policy. The Court of Appeal said that Article 9 of the Human Rights Act did not assist her. So that would seem to be that: her domestic remedies were exhausted. But Ms Eweida was made of sterner stuff and took her case to Strasbourg. The European Court of Human Rights held that the choice put to her, which was “take off your crucifix or lose your job”, amounted to a disproportionate interference with her right to manifest her religion.

The court held that a fair balance had to be struck between her interests and those of others. On the one side was Ms Eweida’s fundamental right to manifest her religious belief, and on the other the employers’ wish to project a certain corporate image. The court found this was a legitimate aim but could not trump the direct discrimination involved in preventing an employee wearing a discreet crucifix since it in no way detracted from her ability to do her job. Further, it pointed out – the killer point in my view – that BA saw no damage to its corporate image by allowing other staff to wear other items of religious clothing, such as turbans or hijabs.

This decision of the Strasbourg court seems to be in conflict with its judicial brothers and sisters in Luxembourg. The ECJ very recently decided in IX v WABE eV (C-804/18) & MH Muller Handels GmbH v MJ (C-341/19) that women could be prohibited from wearing a hijab if the employer had put in place a policy of religious neutrality. The rule would not constitute direct discrimination provided it was applied in a general and undifferentiated way. Neither would such a policy constitute indirect discrimination where the policy could be said to meet a genuine need on the part of an employer, and where the policy was limited to what is strictly necessary and was pursued in a consistent and systematic manner. So according to the ECJ there are certain circumstances in which a worker cannot wear a small crucifix, a kippah or a Sikh Kara bracelet, or adorn themselves with any other physical manifestation of religious belief, no matter how discreet.

The Caribbean

On colonising this part of the world, the English brought with them their beliefs, prejudices and related follies – more on which later. But what happened when the colonial yoke was thrown off?

On decolonisation Caribbean countries put in place independence constitutions. Each country trod its own path and, for all the similarities between the constitutions of the Commonwealth Caribbean, there are telling differences which reveal aspects of the local history, culture and aspirations of the peoples of each country.

Turning first to the similarities. With the exception of Jamaica and Trinidad and Tobago, other Commonwealth Caribbean countries include provisions on freedom of religion which are materially identical to that found in the constitution of Antigua and Barbuda, which provides that ‘no person shall be hindered in the enjoyment of his… freedom of thought and of religion, freedom to change his religion or belief’ and the right of an individual to manifest and propagate their religion. The rest of the relevant section builds on this basic premise.

Other states go further in expressly providing clauses relating to the provision of religious education. For example, Dominica, Grenada, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Belize, Anguilla, Bermuda, the British Virgin Islands, the Cayman Islands, Montserrat, and the Turks and Caicos islands provide for the following, in surprisingly identical terms:

Every religious community shall be entitled, at its own expense, to establish and maintain places of education and to manage any place of education which it maintains; and no such community shall be prevented from providing religious instruction for persons of that community in the course of any education provided by that community whether or not it is in receipt of a government subsidy or other form of financial assistance designed to meet in whole or in part the cost of such course of education. 

 Beyond these provisions, the protection afforded to freedom of religion is supported through reference to other constitutional rights, including non-discrimination clauses.

Furthermore, certain constitutions feature provisions about the composition of the legislature. These are designed to ensure the presence or absence of the religious. Some constitutions have a more secular or religious flavour than others.

For example, the constitution of Barbados makes express provision for senators to be appointed to represent religious interests [at 36(4)].

By contrast, Saint Lucia and Anguilla’s constitutions explicitly provide that a person shall not be qualified to be elected as a member of the house if that person is a minister of religion. Similarly, Antigua and Barbuda, Dominica, Saint Kitts and Nevis, and Montserrat expressly bar from the legislature anyone who is a minister of religion. The definition of ‘minister of religion’ means both professional and lay clergy. So no vicars in Parliament, thank you very much: I wonder what our bishops sitting in the UK House of Lords would make of that.

Commonwealth Caribbean constitutions are further distinguished by the presence, or absence, of references to God and/or Christian values in their preambular texts. These constitutions can be divided into three categories: deistic, Christian-theistic, and secular or Godless.

The majority are deistic; they proclaim that they acknowledge the supremacy of God, and often couple this recognition with an express attachment to human dignity and/or fundamental human rights. Guyana does not quite fit into this grouping, but does make reference to God at the end of the preambular text through use of the propitiation: ‘May God protect our people’.

Constitutional development does not occur in a vacuum. You cannot read the deistic Caribbean constitutions without recalling the Virginian Statute for Religious Freedom – the first ever attempt to provide religious freedom to ‘the Jew, the Gentile, the Christian, the Mahometan, the Hindoo, and [the] infidel of every denomination’. Thomas Jefferson’s battle to get this on the Virginian statute book in 1776 pre-figured the battle-lines of today between those who support the establishment of a state religion on the one hand, and those who oppose the influence of religion in government on the other. James Madison put the point bluntly in a pamphlet supporting the passage of the draft bill:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? 

Freedom of religion, for Jefferson and Madison, meant no state religion. So no Church of England in the USA.

By contrast, the constitutions of the Bahamas, Cayman Islands and the Turks and Caicos may be defined as Christian-theistic, inasmuch as they proclaim or recognise the supremacy of God and expressly confirm their adherence to traditional, sound Christian values, faith, and/or principles.

A number of other constitutions appear to be secular or Godless. They do not appear to recognise or acknowledge the authority of any supreme being (Jamaica, Anguilla, Montserrat, Bermuda). Although anyone who thought that these societies are godless is unlikely to have   visited them. Walk down any street in Kington Jamaica on a Sunday morning and tell me that the people parading in their best attire are not going to church!

But why bother about these high sounding declamatory expressions? Because there is a real, lively and spirited debate in the Caribbean as to what place, if any, reference to constitutional preambles are required in constitutional interpretation. In other words, is it a case of ‘this preamble stuff is all warm words not to be taken literally’ or ‘these trump any statutory provision or new law because they embody the sacred ideals of the constitution’.

The Privy Council suggests that the preamble ought to play second fiddle to the express provisions of a given constitution. Lord Steyn in State v Khoyratty (Mauritius) [2006] UKPC 13 at [15], emphasised the importance of section 1 of the Constitution of Mauritius by explaining it was no ‘mere preamble’. By implication, the text of section 1 was of greater import.

By contrast, Canadian jurisprudence goes the other way. In Re Provincial Judges’ Reference, Lamer CJ invoked the ‘organising principles’ of the Constitution located within the preamble which, in his judgment, filled in the ‘gaps in the express provisions of the constitutional text’. He forcefully argued that the ‘express provisions of the Constitution should be understood as elaborations of the underlying, unwritten and organising principles found in the preamble’. Thus, in Canada it would appear that ‘mere preambular texts’ can give rise to substantive legal obligations binding upon both courts and the government.

Which position is correct in the Caribbean constitutions? In other words, and returning to the title of this talk, what has God got to do with the Law?

Freedom of Religion / Uniform Policy for State Agents – Roop

Let’s look together at a freedom of religion case emanating from Trinidad and Tobago: a first instance decision in the High Court of Justice, Sharon Roop v The Attorney General of Trinidad and Tobago CV2017-03276.

The Claimant in Roop was a Woman Special Reserve Police Officer (‘WSPO’). She was also a practising Muslim.

She brought a claim on the basis that her rights to freedom of conscience, religious belief and observance had been breached because she was not permitted to wear the hijab with her uniform whilst at work.

Many of you may already be familiar with this case, and observe its considerable similarities to Ms Eweida’s challenge to BA which I discussed earlier.

The Police Authority argued that this restriction was justified by the legitimate aim of maintaining a neutral environment in the police service. All policemen and women must look the same. They also argued a floodgates point (always the last stand of the desperate in my view!) that allowing Ms Roop to wear her hijab might enable others to request time off to practice their religion.

The Court found no merit in the Police Authority’s ‘floodgates’ argument (quite right!) and found it to be a disproportionate reason to  forbid  the wearing of the hijab. After all, there were other religious symbols already being worn by officers of other faiths. Similarly, the Court held there was no basis for the suggestion that allowing the wearing of the hijab would mean that Jewish officers of the police service would have to be allowed to take a Saturday as a day off.

What of the argument that the police authority should remain religion-neutral? The Court roamed far and wide and identified the importance of religion throughout the common-law. They looked at authorities from the United States, the European Court of Human Rights, and the European Court of Justice. They noted that the parties adverted to the opinion of the United Nations Human Rights Committee and cited the judgments of the Privy Council relating to the Bahamas and Trinidad and Tobago and so on. Litigation concerning fundamental rights and freedoms does not occur within a vacuum in the Commonwealth Caribbean. Decisions emanating from similar countries are bound to have an impact.

Indeed Jamadar J (as he then was) in Sanatan Dharma Maha Sabha of Trinidad and Tobago and ors v The Attorney GeneralHCA S 2065 / 2004 gave an illuminating disquisition on the history of religion in that country.  In doing so he impliedly held that the constitution is a living document and evolves to meet the needs of contemporary society.

The Court in Roop ultimately found in favour of Ms Roop. In a separate judgment on damages, the Court ordered the Defendant to pay $125,000 in damages (including aggravated damages) and vindicatory damages in the sum of $60,000, in addition to the Claimant’s costs. Not small change, then!

LGBT Rights

What about LGBT rights?

In the case of Maurice Tomlinson v The Attorney General of Jamaica, Tomlinson brought a  claim in which he challenged the constitutionality of the criminal law which criminalises the act of buggery between consenting adult males.

Tomlinson alleged that this law infringes his rights to privacy, freedom of expression, equality before the law and freedom of the person.

A number of Christian groups applied to be added as ‘Interested Parties’ to the litigation. They maintained that they had standing owing to the fact that the matter was one of public importance and it was averred that the outcome would have a bearing on each group’s exercise of the right to freedom of speech and freedom of conscience and religion.

In Tomlinson, in July 2016, the Court ruled on the interlocutory applications, granting each applicant intervenor status, with leave to submit both evidence and submissions.

The Jamaican court’s inclusive approach to intervenor status mirrors that adopted elsewhere in the Caribbean. In Orozco v AG, the Belizean Supreme Court permitted evidence and submissions from the Roman Catholic Church in Belize, and others. In Jason Jones v AG, the Trinidadian High Court permitted submissions from the groups representing evangelical interests.

I must confess I cannot fathom how it is that the de-criminalisation of the offence of buggery between consenting adults in private would inhibit the right of anyone else to freedom of conscience and religion. Would de-criminalising consensual homosexual behaviour stop anyone from attending church? Can it really and truly be said that the removal of criminal penalty would preclude or in any way inhibit the ability of Christians or members of other faiths from freely promoting or manifesting their own religious beliefs?

The question I pose is this. It is plain that same-sex marriage is regarded as abhorrent by many in the Caribbean. But, bluntly, why should that matter? Put more legalistically: to what extent should the  beliefs  of a majority in a society determine the ambit of constitutional rights designed to protect minorities? In other words, why should the beliefs, or prejudices, of the majority prevent a minority from exercising their constitutional rights, provided the rights of the majority are not harmed?.

It is often argued that opinion in favour of de-criminalisation of same-sex offences represents a  Western European innovation which is un-Caribbean. The consequence, so the argument goes, is that such opinions ought to have little to no impact on the development of Caribbean jurisprudence. After all, the colonial yoke was thrown off decades ago.

But the Caribbean anti-buggery laws were imposed on the islands by the British colonial power. These laws owe their origins to British imperialism. That was the past. Is it really right that now-independent countries should still retain and enforce colonial era laws imposed on them by the British? Is that consistent with independence and the establishment of a new constitutional order founded on respect for fundamental rights?

Turning again, back to Tomlinson. The questions remain: how important are majority held cultural norms? To what extent should these be determinative in the resolution of legal disputes?

Of course, every side of the argument must be heard. Thus inTomlinson, Christian groups were allowed to submit evidence founded on the argument that the majority of Jamaicans consider homosexuality, more specifically, buggery, to be repugnant. Mr Braham Q.C. for one of the applicants submitted:

 that section 13(2) of the constitution makes it clear that rights are not without limitation in a democracy. Counsel submitted that among the issues which the Court will have to consider is the impact on the wider society of the relief the Claimant is seeking…

The Court agreed with these submissions and permitted the applicants to intervene.

It seems difficult to square the Court’s finding in Tomlinson, with another Jamaican case, Julian Robinson v Attorney General [2019] JMFC Full 04. In this case, Batts J drew heavy inspiration from Canadian jurisprudence, holding that:

The right does not change with colour or culture. It is the same inalienable human right. This, in the case of Jamaica’s constitution, is underscored by the fact that it is the generic free and democratic society which is now the benchmark. It is not freedom and democracy as prescribed in Jamaica.*****

These cases meet head-on the question of ‘to what extent should the cultural fashions of the majority shape or dictate the constitutional rights of minority groups?’ and give contradictory answers. You must decide between them.

Is it the case that in deciding such questions the Court should have regard to a standard which exists outside of space and time, some sort of platonic ideal of the democratic state, as appears to be the suggestion in Julian Robinson or should the Court consider the socio-cultural norms of the majority, as the Court in Tomlinson appeared to suggest?

If the Robinson approach is correct and not the approach in Tomlinson, what room would that leave for preambular texts, giving vent to the particular histories and hopes of particular peoples, to govern constitutional interpretation? And how should a court identify the components of the ideal democratic state? And by what right can unelected judges arrogate to themselves this task? Perhaps the answer is to be found in observing the recent willingness of Caribbean judges to unpack the enduring principles of Caribbean constitutions to test whether the issue it is deciding conforms to a given constitution’s ‘basic structure’. But sufficient unto the day is the evil thereof. Sadly, there’s no time to deal with a whole range of other important issues, because I see James is desperate to get on his feet.

Thank you.