Supreme Court judge calls for 'reasonable accommodation' of Christian beliefs

Published 24 March 2014  |  
PA
The European Court of Human Rights found that BA check in worker Nadia Eweida had been discriminated against by her employers

The Deputy President of the Supreme Court, Lady Brenda Marjorie Hale, Baroness of Richmond, has called on UK courts to show respect and provide more legal accommodation for the beliefs of Christians.

Speaking on the issue at a lecture at Yale law school in the US, Lady Hale, Britain's most senior female judge, was quoted by The Telegraph saying: "It is fascinating that a country with an established church can be less respectful of religious feelings than one without."

She then highlighted several specific cases giving examples of what she meant.

These included Celestina Mba, a care worker who was dismissed after declining to work on Sundays, registrar Lillian Ladele who was fired for refusing to officiate civil partnerships, Gary McFarlane, a relationship therapist who said he could not in conscience give sex therapy to homosexual couples, and Nadia Eweida, a British Airways employee who was denied the right to wear a cross to her workplace.

Of these cases, only one was successfully ruled in favour of by the British courts. Ms Eweida has been permitted by BA to continue wearing her cross, which Lady Hale described as "something of a breakthrough".

In explaining why these cases were so often failing in the courts, Lady Hale pointed to what she saw as the relative laxity of Christianity compared to other religions.

"It is not difficult to see why the Christians feel that their religious beliefs are not being sufficiently respected.

"Other religions with stricter dress codes or dietary laws are demanding concessions which Christians feel that it is harder to claim because they cannot point to equivalent religious requirements.

"The Church of England is a very undemanding Church. It has no dietary laws, no dress codes for men and women, and very little that its members can say is actually required of them by way of observance."

Lady Hale was quoted in the Times noting how England was a "paradoxical country" when it came to matters of religion.

"Politicians are not encouraged to wear their religion, if any, on their sleeves.

"Religious observance is much more common amongst minority communities than it is among the majority, who would once unhesitatingly have described themselves as 'C of E' even if they never went to church."

However, Lady Hale was not supportive of all Christians who took legal action to defend their beliefs. She was one of the Supreme Court judges who did not support Peter and Hazelmary Bull, the Christian guesthouse owners who denied a double room to a gay couple.

In the Daily Mail, Lady Hale described such action towards Steven Preddy and Martyn Hall as an "affront to their dignity as human beings".

She also said that such cases should be prosecuted because Christians should not be able to "pick and choose" which laws they obey.

Nor did she agree with figures such as the former Archbishop of Canterbury, Lord George Carey, who had attempted to intervene in the case of Gary McFarlane. She said that Christianity should not expect "special protection" under the law.

Instead, she proposed a system similar to the one currently used in Canada where "reasonable accommodation" is provided to religious individuals.

This kind of law would offer what Lady Hale called a "general defence of justification in discrimination law" in which courts can weigh the merits of a case.

Lady Hale suggested that if there is a "good reason for a difference in treatment [courts] will try to find a reason why it is not unlawful".

In Canada, if an organisation refuses to provide a service for religious reasons, they must take reasonable steps to help provide an alternative.

A similar case to the Bulls, had occurred in Canada recently, but the Christian hotelliers only lost because of the offensive manner in which they dealt with the homosexual couple in question.

Describing the Canadian court's decision on this case, Lady Hale said: "This is not an approach which is permitted to us in the United Kingdom."

However, she was not completely fulsome in her praise of the Canadian model, saying: "I am not sure how comfortable I would be with the sort of balancing exercise required by the Canadian approach."

Lady Hale questioned the effectiveness of using anti-discrimination law to solve these kinds of problems, and instead argued that Christians ought to focus their efforts on human rights law.

"Would it not be a great deal simpler if we required the providers of employment, goods and services to make reasonable accommodation for the religious beliefs of others?

"Then employers might have to make reasonable accommodation for the right of their employees to manifest their religious beliefs and suppliers of services might have to make reasonable accommodation for the right of their would-be customers to use them."

Speaking about the best way to accomplish such a shift, Lady Hale said: "We can get this out of the European Court of Human Rights approach but not out of our anti-discrimination law.

"I find it hard to believe that the hardline EU law approach to direct discrimination can be sustainable in the long run."

Lady Hale speculated that the Lillian Ladele would have had a different outcome if different laws had been invoked: "I wonder what would have happened if Ms Ladele had brought a Human Rights Act claim in England against the London Borough of Islington rather than, or as well as, a discrimination claim."

Lord Carey praised Lady Hale's position. Quoted in the Telegraph, he said: "I welcome Lady Hale's recognition that there is a considerable problem for the courts in adjudicating around a series of competing rights.

"Her suggestion of a test of 'reasonable accommodation' recognises that the law and the courts have failed to balance competing rights properly.

"It remains my view that a panel of lawyers with expertise and a knowledge of religious faith is badly needed."

Lady Hale's comments in the US came days before a speech by Lord David Neuberger, president of the Supreme Court, who was quoted by Christian Concern as raising concerns about the "censoriousness about what views people can publicly air".

In response to Lady Hale's comments, Andrea Williams, CEO of the Christian Legal Centre said: "There is still a long way to go if proper freedoms are to be upheld for all and we need concrete action from political, judicial and church leaders but we are thankful to God for progress that is being made."

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