Lecture 3

1. Lecture 3 The Religious Scruples of public Office-bearers

2. The human right of religious freedom • ECHR Art 9 guarantees the right … ‘to manifest [one’s] religion or belief in … practice and observance’ • Art 14 prohibits discrimination in the enjoyment of Convention rights • Human Rights Act 1998 makes ECHR claims justiciable in domestic courts, forbids public authorities to act in violation of such rights, and requires courts to have regard to Strasbourg [ECtHR] jurisprudence

3. The human right of religious freedom • Religious people who believe consummated same-sex relationships to be sinful regularly claim that the ways in which they show this disapproval (e.g. in verbal argument, in their employment practices, in refusal of services) are protected manifestations of their religion • But the right cited from ECHR Art 9 is qualified: it may be subject to limitations ‘prescribed by law and 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’.

4. Other relevant human rights • Art 8 ECHR guarantees respect for private and family life • This guarantee is also qualified (interference allowed e.g. for the protection of morals or of the rights of others) • ECtHR decisions include same-sex relations under ‘private life’ but not ‘family life’ • Legal recognition of same-sex unions is one way in which respect for private life can be shown, although whether and how to recognise such unions probably falls within contracting states’ ‘margin of appreciation’ • Art 6 ECHR requires civil rights to be determined before an ‘impartial tribunal’

5. Other relevant rights and duties • EU Council Directive 2000/78/EC imposes a general framework for equal treatment in employment and occupation • The Employment Equality (Religion or Belief) Regulations 2003 prohibit direct or indirect discrimination against an employee or office-holder because of his/her religion • The Civil Partnership Act 2004 provides for same-sex partnerships, entered into by signing a register in front of a civil partnership registrar, and allows civil partner couples to adopt children on the same basis as married couples • The Equality Act (Sexual Orientation) 2007 prohibits public authorities from discriminating against any person because of his/her sexual orientation

6. Other relevant rights and duties The Judicial Oath: • I … swear by Almighty God that I will well and truly serve our sovereign lady Queen Elizabeth the second in the office of [Justice of the Peace for the County of South Yorkshire] and I will do right to all manner of People, after the laws and usages of this realm, without fear or favour, affection or ill-will; so help me God. • The Oath is taken to require a judge to hear all cases that may come before him – although a judge can ‘recuse himself’ for recognised grounds, e.g. an appearance of bias

7. McClintock • 1988 Appointed a J.P. (= lay magistrate) for South Yorkshire; swears the Judicial Oath • 1991 Joins the Family Panel of the Bench, entitling him to decide cases where decisions are taken on care placement, fostering and adoption • 2004 Regards the CPA provision for adoption of children by civil partner couples as ‘using children as guinea-pigs in a social experiment’ • 2006 When told he cannot be excused from judging such cases, resigns from the Family Panel

8. McClintock v. Dept of Constitutional Affairs [2008] IRLR 29 • Employment Tribunal discrimination claim under EE(R/B)Regs 2003, reiterating ‘social experiment’ reasoning, fails • Appeal to Employment Appeal Tribunal, adding religious objection to same-sex unions and ECHR Art 9 claim, also fails • Accepted that the 2003 Regs must be read, if possible, in a manner compatible with Art 9

9. McClintock – discrimination law issues • The reason given to the DCA and to the ET for McClintock’s unwillingness to hear same-sex adoption cases was the ‘social experiment’ argument, based on allegedly inadequate government research. Religious objections were not voiced so there could have been no religious discrimination because of them. • Even had they been voiced, there would have been a proportionate reason for the ‘indirect discrimination’ involved in insisting on the judicial oath

10. McClintock – discrimination law issues • Employment Tribunal: • ‘To have allowed the Appellant, or anyone else for that matter, to opt out of cases where they disapproved or were less than enamoured with the law because of their views on a particular matter or because their conscience would not allow them to consider doing something, would have been abdication of the responsibilities of those whose task it is to uphold the administration of justice in this country. Even if a Judge personally has particular views on any subject, he or she must put those views to the back of his or her mind when applying the law of the land impartially as their judicial oaths of office require them to do. It is the only way the public can place any trust in the law. To allow Judges with a particular point of view the ability to avoid cases which come before them because they feel it will likely cause them embarrassment or difficulty could, apart from anything else, impose greater burdens on others or lead to a situation whereby another pool of Judges with views in another direction might have to sit and adjudicate on such cases. The Respondent's stance was therefore wholly proportionate and wholly justified and, in our view, wholly necessary. In a country where there is such a diverse range of opinions and beliefs held and expounded by people from many religions and walks of life, it would be invidious were judges to pick and choose which cases they were prepared to sit on. It would undermine the basis of our judicial system, one that ‘warts and all’ has served people well for a very long time.’

11. McClintock – discrimination law issues • EmploymentAppeal Tribunal: • ‘the issue is whether a judge should be allowed a blanket objection not to have to hear cases which involve a consideration of laws to which they have a principled or conscientious objection. It does not of course mean that he or she will have to hear particular cases where, because of their activities or public pronouncements, their hearing the case might give the appearance of bias.’ • Recusal ‘is different from a situation where the judge is refusing to apply the law because he has moral objections to it, or thinks that it has been introduced prematurely or has been insufficiently considered. He is then expected to put his personal views to one side — which judges frequently have to do — and there is no reason why the parties should not trust him to be able to do that.’ • cp. McClintock argument for a representative judicial Bench with a cross-section of citizens views

12. McClintock – Human rights issue • Employment Appeal Tribunal: • ‘line of authority in ECtHR which strongly suggests that, at least in circumstances where a party voluntarily places himself or herself in a position where a conflict might arise between his or her religious or philosophical beliefs and the duty imposed by an employment or office, then it is not in general an infringement of Article 9(1) to insist that the duties are complied with’ • consider also Art 6 ?

13. Ladele • 2002 appointed a Registrar of Births Deaths and Marriages • 2007 Registrar service becomes a local government function and L. becomes an employee of the London Borough of Islington (LBI) • 2005 LBI designates all existing registrars to be also ‘Civil Partnership Registrars’ • 2006 LBI refuses to allow L. to opt out of officiating at civil partnership registration. L’s continued refusal leads to a disciplinary hearing and other disadvantages, although she is not dismissed

14. Ladele v. LB of Islington (2008) • L. claims religious discrimination in relation to LBI’s refusal to make special provision for her beliefs, and in relation to the subsequent treatment • The claim succeeds before the ET but LBI appeals to the EAT (judgment 19.12.08), where the appeal is allowed: • ‘the Tribunal has fallen into the trap of confusing the council's reasons for treating the claimant as they did with her reasons for acting as she did’

15. Ladele – the ‘legitimate aim’ • LBI aim, as summarised by the EAT: • ‘To provide an effective civil partnership arrangements service as an employer public authority which is wholly committed to the promotion of equal opportunities and to fight discrimination … part of [this] commitment is that employees should not be permitted to refuse to provide services to the community for discriminatory reasons’

16. Ladele – discrimination law • The council was entitled to adopt the position it did. Once it is accepted that the aim of providing the service on a non-discriminatory basis was legitimate -and in truth it was bound to be - then in our view it must follow that the council were entitled to require all registrars to perform the full range of services. They were entitled in these circumstances to say that the claimant could not pick and choose what duties she would perform depending upon whether they were in accordance with her religious views, at least in circumstances where her personal stance involved discrimination on grounds of sexual orientation. That stance was inconsistent with the non-discriminatory objectives which the council thought it important to espouse both to their staff and the wider community. It would necessarily undermine the council's clear commitment to that objective if it were to connive in allowing the claimant to manifest her belief by refusing to do civil partnership duties.

17. Ladele – human rights law • ‘Cases such as Ahmad v UK [1982] 4 ECHR 126 and Stedman v UK [1997] 23 ECHR CD show that the act of an employer who refuses to accommodate an employee's wish to have time off for religious worship does not even engage Article 9 . In each case the Commission took the view that the reason for the conduct was the refusal to work the hours, rather than the religious belief as such. The rights under Article 9 were not subject to interference because the employee could resign and take up other employment.’ • Did it matter that the duties were imposed after L. took up employment? • ‘We doubt, however, whether even this argument could succeed here because the range of duties appropriate for registrars had been extended by Parliament and the claimant was being required to carry out precisely the kind of tasks which those in her situation do.’

18. Ladele – human rights law • The limitations imposed on freedom of religion are particularly strong where a person has to carry out state functions. In Kalak v Turkey [1999] 27 ECHR the court found that the military judge's Article 9 rights were not breached when he was compulsorily retired for reasons associated with his religion. He had adopted fundamentalist Muslim opinions inconsistent with his position as a judge. The court said this (para 27-28): • “Article 9 does not protect every act motivated or inspired by a religion or belief. Moreover, in exercising his freedom to manifest his religion, an individual may need to take his specific situation into account. • In choosing to pursue a military career, Kalak was accepting of his own accord a system of military discipline that by its very nature implied the possibility of placing on certain of the rights and freedoms of members of the Armed Forces limitations incapable of being imposed on civilians.” • In that case it was not the Muslim beliefs which created the problem - indeed, he was allowed, for example, to pray five times a day and to keep fasts - rather it was, as the court put it, “his conduct and attitude.’ • see also Knudsen v. Norway, 1964

19. Points to ponder • Are state office-holders a special case in relation to human rights claims? Should they be? • Are democratic bodies entitled to adopt and enshrine in law a ‘national (or local) morality’ which may exclude certain candidates from office? • What would have been the situation, were the position reversed (e.g. a Roman Catholic or Mormon fostering service which would not employ a gay manager who saw no objection to same-sex fostering)?