Wednesday, 20 July 2011

two more views on the EHRC intervention

Savi Hensman has made a detailed analysis at Ekklesia, see An ill-judged intervention from the Equality and Human Rights Commission.

…If the EHRC were to succeed, Christianity’s reputation would be further damaged among those who come to associate it with institutionalised prejudice and abuse of power.

Christians too could find themselves on the receiving end of ‘conscientious’ discrimination. For instance, at present, if a church were vandalised, a police officer sent to the scene would be expected to do his job sensitively and diligently. This would be so even if he happened to be an ardent atheist in his private life who believed that religion was the source of most of the world’s evil. But if he believed that his belief could override his duty, he might refuse to go.

What is more, discrimination against Christians might appear increasingly justifiable, especially among those who do not know that – in practice – many churchgoers are reasonably sensible, accepting people, very different from the most vocal campaigners against ‘persecution’…

A rather different view comes from Alasdair Henderson at the UK Human Rights Blog. See A leap of faith?

…The way forward which the Commission proposes is the concept of “reasonable accommodation” for employees’ beliefs (similar to the ‘reasonable adjustments’ duty employers have towards disabled people). This is an idea that was floated by Aidan O’Neill QC on this blog not so long ago. The EHRC gives an example in its press release of how this could work – “If a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota. This would potentially be reasonable and would provide a good outcome for both employee and employer.”

…The EHRC’s announcement has been welcomed by those who felt the Commission had failed to adequately support the right to religious freedom in the past, or even been anti-Christian. However, it has also provoked fierce criticism from some quarters. Some gay rights activists are concerned that this signals a shift in the Commission’s views that might negatively effect gay equality, given the particular difficulties of potential clashes between protection from discrimination on grounds of sexual orientation and protection of religious freedom (see our post on this subject here).

…Rather more strangely, the EHRC’s announcement has been heavily criticised by secularist and humanist lobby groups like the British Humanist Association. It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists.

In any event, it will be interesting to see how these cases, and the EHRC’s involvement, develops in the coming months. There are some important questions that will require significant thought. Is an employee’s religious belief really comparable to disability, such that it can be analysed and approached in the same way? How could employers be helped to accommodate employees’ religious beliefs while at the same time ensuring that there is no discrimination in the provision of services to the public? Whatever the outcome, hopefully this move by the EHRC will produce more light and less heat in a particularly difficult and sensitive area of human rights and equality law.

Posted by Simon Sarmiento on Wednesday, 20 July 2011 at 8:47am BST | TrackBack
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Categorised as: equality legislation
Comments

"It is difficult to understand why such groups have any objection, since any argument by the EHRC that there should be accommodation for employees’ beliefs would apply not just to Christians, but equally to people of all faiths, including humanists and atheists."

Yes, but how often is a humanist or atheist going to come up against a legal requirement that violates their faith (or lack thereof)? I am hard-pressed to even imagine such a circumstance. When, in modern life, is a person without religious faith forced by law to express such faith? In court, one can affirm rather than swear on a bible.

Posted by: Pat O'Neill on Wednesday, 20 July 2011 at 11:22am BST

Although one might have sympathy with the claimants' sense of injustice, I agree with Savi Hensman that Christianity's reputation suffers. None of these cases seem to relate directly to the Gospels.

Posted by: A J Barford on Wednesday, 20 July 2011 at 2:24pm BST

Henderson simply does not understand.
Some -- thankfully, not all -- Christians feel they have a religious right, an absolute religious duty, to NOT associate with gay people, to NOT dispense prescribed birth-control pills or other legal contraceptives, to boldly thrust women away from clinics offering abortion, to tell gay students they are perverts and diseased. And to be able to do so without legal constraint or sanction against.
They feel it is their Christian duty to behave in the above described manner, and they feel that ANY intrusion or prevention by anybody else in their ability to do so is an absolute violation of their religious freedom.
Because God Is On Their Side.
To cite examples, this type of Christian feels it is their bounden duty to refuse and emphatically and forcefully reject same-sex couples signing up for a civil partnership license, even if it is part of their public duties as registrar. They feel that the entire registrar's office must be bent around their needs. Similarly, as pharmacist's or chemist's assistants, they feel they have the absolute right to refuse to give to any woman a prescription or device that violates their moral principles, and feel it is the duty of the pharmacy or chemist's shop to work around them. Otherwise, they are being persecuted. Simply finding a different line of work won’t do. No, the employer must bend to their will. They feel that wearing a cross or crucifix on a chain is a divine right, even if such jewelry creates a safety hazard or creates erroneous instrument readings, while at the same time, it's perfectly OK to tell the wearers of other religious adornment "NO!"
This type of Christian that I am referring to doesn't want reasonable accommodation. They don't want equality. They want special privilege. A privilege they would freely deny to all others.

Posted by: peterpi - Peter Gross on Wednesday, 20 July 2011 at 5:48pm BST

Unlike the US, all pupils at UK State schools are required take part in an act of collective worship, 'wholly or mainly of a broadly Christian character', but which may accommodate aspects of different faiths.

The exceptions are religious (non-Christian) State schools and those for which the Local Education Authority has deemed it inappropriate. Reports show that many schools ignore the collective worship requirement anyway.

Parents have the right to exclude their children from collective worship. However, the pupils cannot opt out by themselves.

The British Humanist Association has noted possible issues when 'the worship element is not kept clearly apart from secular spiritual, moral, social and cultural aspects, and from notices' http://www.humanism.org.uk/education/parents/worship-your-rights.

I would think that a clear separation of religious from secular elements would be considered an entirely 'reasonable accommodation' by atheists, rather than having their children opt out of school assembly completely, as may do at present.

Posted by: David Shepherd on Wednesday, 20 July 2011 at 8:20pm BST

Savi is spot-on, per usual.

Posted by: JCF on Wednesday, 20 July 2011 at 8:40pm BST

When I was at school, one teacher was a secular humanist. She taught English. She was naive about Christian faith (she highly amused the Christian physics teacher, who I happened to know, by bursting into the staff-room declaring she had proved there was no God - she had just discovered the size of space, something he knew rather well). Nearly every lesson, somehow she got on to her beliefs. Nearly every time, she sought my views and then attacked them. I cannot tell you how stressful and painful it was for me to be obliged to stand up to her time and time again - child against adult, pupil against teacher. I am sure she did not realise just what she was doing - but please, never think that Christians are the only unfair ones, or the only ones who make the lives of others seriously miserable. Now, I think I might have found ways of complaining, or getting her reported, of doing something - times have changed. But then? There are not two clear sides.

Posted by: Rosemary Hannah on Thursday, 21 July 2011 at 12:15am BST

It's worth remembering that the case being discussed is with the European Court of Human Rights and therefore any ruling would have immediate impact on all signatory countries. On the policy level it is of course worth looking at the degree to which religious people are accommodated but I think this is best done through Parliament.

Too large an accommodation will simply eviscerate legal protections for LGBT people in many parts of Europe and that would be wrong. It's also wrong (in my view) for the European Court to step beyond the margin of application in allowing countries to strike balances on these issues.

If the EHRC believes that UK law is not compliant with the convention then it needs to say so and so far as I can see they aren't (at least not with that degree of force). On the narrow point of days off for weekly worship I in essence agree that employers should seek an accommodation to requests made but for some employers this will be very onerous. Making employers more duty bound to honour complex duty requests as well as all the various refusals of service that individuals wish to enact places a heavy burden on concerns be they public or private sector. (I do though believe reasonable requests should be honoured wherever this is reasonable but not as an absolute).

So I'm not saying that the concept has no uses but the comparison with disability discrimination is a rather different matter.

On the whole I'd be surprised if the European Court rules against the UK Supreme Court and I think it's a little odd that the EHRC appears to have such a low view of the Supreme Court's ability in these cases.

A final point is that only in recent years EU countries have outlawed discrimination in religion and belief in the workplace and that in any case (and for the same reason) the extent to which there are 'exemptions' is covered in the Directive.

Posted by: Craig Nelson on Thursday, 21 July 2011 at 12:39am BST

http://www.bbc.co.uk/news/uk-england-devon-14028167

Michael Lyons, an atheist, was recently sentenced to 7 months imprisonment. While enlisted in the Navy as a medical assistant, he came to believe that the Afghan war was wrong. He had discovered through documents leaked to the media that the level of civilian carnage had been routinely under-reported by officials. He didn't want to participate in acts of indiscriminate slaughter.

He eventually refused a direct order to attend SA80 training and was court-martialled. The SA80 rifle is capable of delivering 700 rounds per minute at a muzzle velocity of 940 m/s. His liberty to believe that the war and his deployment to Afghanistan was wrong didn't exempt him from his duty to use lethal force on behalf of the Navy and the country that he serves.

Even if some of cases may appear petty and trivial by comparison, let's not pretend that conscientious objection is the preserve of small-minded religious fanatics.

Posted by: David Shepherd on Thursday, 21 July 2011 at 1:50am BST

David: I accept that your first example is one of a humanist/atheist forced to participate in a religious ceremony.

But the second? There is no indication that it is Lyons' lack of religious belief that led to his refusal to obey an order. There was no "conscientious objection" as the term usually applies.

Posted by: Pat O'Neill on Thursday, 21 July 2011 at 11:17am BST

"This type of Christian that I am referring to doesn't want reasonable accommodation. They don't want equality. They want special privilege. A privilege they would freely deny to all others."

- peterpi -

And this is the problem when Christians like the former Archbishop of Canterbury, George Carey, want 'special arrangements' for the exclusion of the LGBT community from Church and society. Such 'rights' are surely wrong. The injunction of Jesus: "Come to me..." is in no way exclusive.

Posted by: Father Ron Smith on Thursday, 21 July 2011 at 12:23pm BST

But it was Lyons set of beliefs that caused his position. Surely belief extends beyond there is/is not a god? He held a particular position, a belief position. It was not logical self interest ('I might be killed') but a belief ('Behaving in this way is morally abhorrent.

Posted by: Rosemary Hannah on Thursday, 21 July 2011 at 2:25pm BST

Pat, how can you say that Mr. Lyons didn't have a conscientious objection? How do you know he didn't? He was a medic. He refused to obey an order ordering him to train on a weapon -- from how David Shepherd describes it -- not primarily intended for self-defense. He is being punished for that refusal, and is being expelled. I bet he knew these would be the consequences of his actions.
Or, ... are you implying that only religious folks can be conscientious objectors? Because only religious folks can object conscientiously?
WikiLeaks most emphatically is not my cup of tea. But, I see no reason why reading leaked documents couldn't inform or deepen a person's conscience any less than the Bible or the writings of Jewish or Christian devout men and women, or the Bhagavad Gita, or the Q'uran, or the writings of Confucius, or the teachings of a shaman or medicine man/woman.

Posted by: peterpi - Peter Gross on Thursday, 21 July 2011 at 3:50pm BST

Hi Pat,
My last comment really wasn't provided as a second rebuff to anything you wrote. It was prompted by the later caricature of Christians who favour a reasonable accommodation.

Conscience can be completely secular and many atheists are also humanists. That would more adequately explain Lyons' belief that he was acting in conscience than the mere negation of God's existence. 

The reality is that beyond the tenets of organised religion, beliefs rarely fit into neat little parcels. Yet, the Act defines belief in terms of recognised philosophy, citing humanism as an example, in order to avoid the endless permutations of differing personal convictions.

Even when there's no conflict between protected characteristics, It's all too easy to encourage an individual's public expression that may symbolise pride in one such characteristic and then deny that level of support to the expression of others.

Posted by: David Shepherd on Thursday, 21 July 2011 at 8:18pm BST

Peter:

But what "faith" does Lyons point to say his is a conscientious objection? His own conscience, alone? Not tied to any established set of beliefs held by others?

By that measure, any man can disobey any order, any law, and claim "I cannot do this because it violates my conscience" without any way to determine whether or not he is simply refusing to comply for reasons having nothing to do with his conscience.

Posted by: Pat O'Neill on Thursday, 21 July 2011 at 8:55pm BST

"any man can disobey any order, any law, and claim "I cannot do this because it violates my conscience" without any way to determine whether or not he is simply refusing to comply for reasons having nothing to do with his conscience."

Pat, I think you're drawing a false distinction between "reason" and "conscience" (they come from the same human brain!).

From the point-of-view of institutions like the military, "It's against my conscience" is the acceptable way to (alternatively) say "I have my reasons."

All that matters, is that human (brain) in question is emphatic that their actions are going to follow what they're brain is telling them (and not what some other human brains are dictating!). Assuming the person is not clinically insane, I think it's best to respect the beliefs, regardless whether they're called "reasons" or "conscience."

Posted by: JCF on Thursday, 21 July 2011 at 10:42pm BST

Conscientious objection is a rather different case from those being addressed by the European Court of Human Rights, in that (a) it is generally about refusing to take life oneself, rather than enabling others to make different ethical choices from oneself, (b) it involves withdrawing from an occupation which raises moral concerns - something which those of us not in the armed forces take for granted (in any other job, one simply works out one's notice and quits).

Rosemary Hannah's experience is an example where an employee's expression of her own beliefs infringed on someone else's, in a way that might now be regarded as discriminatory. I think there are many risks if it is regarded as permissible to discriminate against others for reasons of belief.

Posted by: Savi Hensman on Friday, 22 July 2011 at 11:07am BST

"Assuming the person is not clinically insane, I think it's best to respect the beliefs, regardless whether they're called "reasons" or "conscience.""

In a military context, that way lies anarchy. The entire structure is built on following orders because it is assumed a superior officer knows better what is required in a given situation. If the person objecting cannot point to a specific religious belief that prevents following the order, then any soldier could refuse any order only by saying "I have my reasons...."

And how would you apply this in the civilian world? "Why did you kill this man?" "I had my reasons...."

Posted by: Pat O'Neill on Friday, 22 July 2011 at 11:23am BST

From the UK Armed Forces Humanist Association Constitution:

"In battle, and all other operations, high morale equates to the moral strength which gives true ascendancy over the enemy. The duty of bearing arms, of being prepared to fight, kill and if necessary die in carrying out orders, carries with it the responsibility only to do so in a just
cause. All service personnel have direct and unique responsibility for life and death.

Individually, all service personnel are subject to international and national law, and must discharge their duties not just according to orders and law, but consciously and clearly for the greater good. Commanders must ensure that all subordinates understand these responsibilities of their service, and that their cause is just. This entails proper understanding of the Laws of War, Humanitarian Law and Rules of Engagement; but it also means an underlying deep comprehension of the moral and ethical responsibility of bearing arms.

British servicemen must obey their orders confident that the ends, ways and means are right morally as well as militarily."

Posted by: David Shepherd on Friday, 22 July 2011 at 11:57am BST

David:

Yes, a soldier has the right (indeed, the duty) to disobey an immoral order...but he has to demonstrate--probably before a court-martial--that the morality in question is more than his own moral judgment, that it is part of a recognized religious or moral code. He can point to its being in violation of international or national law, such as the UN's Universal Declaration of Human Rights...but it will probably be declared insufficient by any military court for him simply to say, "I thought it would be wrong..."

Posted by: Pat O'Neill on Friday, 22 July 2011 at 9:36pm BST

". .but it will probably be declared insufficient by any military court for him simply to say, 'I thought it would be wrong...'"


But, if he did - and this is also an important point - he would do so with the full knowledge that he was required to *accept the consequences of having done so*.

For many of us - even many of us progressive types - the disgust we feel isn't so much that there is a danger of someone thrusting their version of their faith on others, but that they want to do what they wish without consequence, and think the rest of us should respect that as some sort of moral witness. It's not. It's self-indulgence.

Posted by: MarkBrunson on Saturday, 23 July 2011 at 5:13am BST

Pat O'Neill

As newspaper reports on Michael Lyons' case indicate, he clearly thought long and hard about his decision, which was in line with international codes around warfare (and indeed 'just war' theology).

There may well be occasions when beliefs preclude people working in certain jobs, e.g. a Muslim (or indeed Christian or other person of faith) might not wish to be a debt collector for a loan shark, and a vegan passionate about animal welfare might not accept work in an abattoir.

This is different from undertaking to do a job but treating a certain category of clients/customers/service users or fellow-employees less favourably than others.

Posted by: Savi Hensman on Saturday, 23 July 2011 at 1:33pm BST

Mark Brunson @ 5:13am, bravo!
Years ago, a group of anti-abortion Christians trespassed an entrance to an abortion clinic here in Denver, and blocked entrances. They were charged and convicted of trespass. They and their supporters were shocked that a judge sentenced them to jail. They were sincere! They Were Doing The Right Thing! The judge should have just wa(i)ved away the charges!
People conveniently forget that engaging in civil disobedience requires you to be fully aware of what the consequences of your actions are, and that includes doing jail time.

Posted by: peterpi - Peter Gross on Saturday, 23 July 2011 at 6:10pm BST

Savi,

There is a vast difference between completely avoiding an occupation on ethical grounds and having religious reservations about a newly instituted requirement or prohibition within a role that you've carried out to the satisfaction of your employer for several years,

I mentioned the Lyons case to highlight the fact that secular belief is more than a series of negations and that it can inform an act of conscience in the workplace. It was to the detriment of his case that the chaplain's statement recorded Lyons' refusal as merely inspired by political persuasion, rather than a moral objection.

It was unfortunate that St Thomas More's on-the job refusal to take the oath recognising the first Act of Succession was tantamount to treating Anne Boleyn's daughter, Princess Elizabeth as a bastard. The alternative was for him, as a Catholic, to deny papal authority and the legitimacy of Catherine of Aragon's daughter, Mary, to inherit the throne. Surprisingly, More maintained a vigorous defence against the charges of treason, rather than fling himself under the executioner's axe.

Posted by: David Shepherd on Sunday, 24 July 2011 at 8:53am BST
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