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The Religious Scruples of

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Lecture 3 The Religious Scruples of public Office-bearers – PowerPoint PPT presentation

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Title: The Religious Scruples of


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
    ones 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
    McClintocks 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
  • Employment Appeal 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.
    Ls 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
    LBIs 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)?
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