Freedom of Religion and Belief

Lord Brown of Eaton-under-Heywood Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it is unsurprising that the bulk of today’s debate should have focused on the many ghastly violations of Article 18 that, alas, continue to disfigure so many parts of the world. However, with some small encouragement from the noble Lord, Lord Alton, whose introduction to this debate was, as ever, compelling, I intend instead to focus on a much narrower question that sometimes arises: when the right to manifest—not to hold, but to manifest—one’s religion or belief must surrender to the rights and interests of others. It is a question that has exercised the courts of this country and elsewhere on a number of occasions.

Article 18 of the universal declaration appears on the face of it to confer two unqualified rights: the right to freedom of religion or belief, and the right to manifest that religion or belief. But that is not quite so. It is widely recognised not to be so in international law, including, most relevantly for our purposes, in Article 9 of the European Convention, which, of course, is the equivalent provision and is now incorporated under domestic law here. Article 9.1 of the convention is in effectively identical terms to Article 18 of the universal declaration, but Article 9.2 makes it plain that the manifestation of one’s religion or belief is a qualified, not an absolute, right. It provides for limitations to the right,

“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”.

It is generally the protection of the rights and freedoms of others and, above all, the increasing recognition of the rights of others, in particular gays and lesbians, not to be discriminated against that has led to much of the litigation under this provision.

Take the Supreme Court case of Bull and Bull—touched on recently, if perhaps a little tendentiously, by the noble Lord, Lord Maginnis—which held that Christian hotelkeepers, however strongly held their belief that homosexual practices are sinful, could not on that ground alone refuse to let a double-bed room to a homosexual couple. The court pointed out that Strasbourg requires very weighty reasons to justify discrimination on the grounds of sexual orientation. Another case mentioned by the noble Lord, Lord Maginnis, was the Northern Irish one, just two months back, which held that a bakery had unlawfully discriminated against a gay supporter of same-sex marriage for whom they had initially agreed, but later refused, to bake a cake iced with a logo including the slogan, “Support gay marriage”.

There was also Strasbourg’s decision two years ago, in a group of United Kingdom cases concerning religion in the workplace, to dismiss three of the four applications, including those of Lillian Ladele, a civil registrar for Islington, who was disciplined for violating the borough’s “dignity for all” policy by refusing to register partnerships because of her belief that homosexuality is sinful; and Gary McFarlane, a sex therapist dismissed by Relate, a counselling charity, for refusing, on the same grounds, to provide sex therapy for same-sex couples. Similarly, under Article 9.2, in 2005, in the Williamson case, the appeal committee in this House rejected the claimants’ asserted right as teachers and parents at a school established specifically to provide Christian education based on biblical observance to use corporal punishment despite contrary legislation. Indeed, the next year in the Denbigh High School case we rejected a Muslim schoolgirl’s claim to have been wrongly excluded from the school unless she wore the school uniform instead of the jilbab she insisted on wearing. Many of your Lordships will recall too the recent Crown Court ruling that a woman must remove her Muslim veil, charged as she was with victim intimidation, so that the jury could properly observe her facial expression.

These are just some of the many cases which show that, absolute though one’s right to freedom of religion and belief is, in deciding whether to manifest it there are other important interests and considerations in play. Believe whatever you wish, but in your behaviour think of others too. Surely that is a sound precept.