Section 3. What can be done?
The first two sections of the Clearing the Ground report drew the conclusion that Christians are being increasingly marginalised in both society and law. Section 3 begins to focus upon how these problems should be addressed by government.
‘Laws are often described as legislated morality, and in an open society, our relational priorities will be reflected and influenced by our laws. In the West, over the last 100 years, laws have become framed and directed by increasingly secularist conceptions of human rights. This shift of ‘freedom from’ to ‘freedom to’ means that the original Christian-inspired tenets of the Human Rights Convention have now been superseded by a radical egalitarian view in which a new culture of entitlement imposes an obligation on the state to deliver individual demands that are presented as rights. Equality thus construed tends towards seeing all lifestyles as being of equal value. This means that the very notion of normative behaviour is considered to be oppressive – and moral judgments are viewed as prejudices.’
This is the dilemma that Christians face. Whenever a moral stand is made against an activity or lifestyle of another equality strand, even if it follows orthodox Christian belief, it is now seen as prejudice. Inevitably this scenario arises most frequently in realtion to sexuality, which can unfortunately give the impression that Christians are obsessed with sex. For those who argue that the law needs to take a neutral secular view of these matters, and that Christians need to adapt accordingly, the report responds critically:
“We see religion as part of the solution to the problems we have to deal with. Does government? I think the present coalition government has given some mixed signals on this… understanding religion as a potential source of social tension and difficulty which has to be moderated from a position of presumed neutrality? Does it actually understand that neutrality doesn’t exist? … and that to work with religions you have to actually understand them from within.” (Revd Dr Malcolm Brown, Church of England)
True neutrality in law cannot genuinely exist; each law can be seen as prejudicial and coercive, either affirming or counteracting a worldview. The myth of secular neutrality is a critical factor that skews the law and public perceptions to the cost of religious freedom.
The report makes it clear that it is not the government’s role to enforce Christian belief on society, but neither should Christians be forced to give in to a secular humanist agenda. The proposal is therefore made that space should be made in law to allow for ‘reasonable accomodation’ when tensions arise between religious belief and other rights or equality strands.
The concept of reasonable accommodation already exists in UK law. For example, public buildings should provide disabled access to their facilities, but in the case of historic buildings this may not be feasible without damaging alterations. In these instances the owners need to show that they have made reasonable efforts to accommodate the needs of disabled people, for example providing access to some parts of the building but not all. It is suggested that the introduction of a test of reasonable accommodation would ensure that the rights of Christians and those of other faiths to manifest their belief were not unduly restricted.
“The way the law is framed doesn’t invite them [the courts] to ask that question [could accommodation be found?]. And I think the reason then for proposing a reasonable accommodation duty is that it sends a message to employers; that if you can find a way of accommodating this on the ground, you should adopt that way, where it’s not too costly to you.” (Professor Julian Rivers)
However a warning is given that reasonable accommodation is not a simple answer to resolving equalities issues and protecting the role of religion in public life:
“My qualms are about overlegislating, turning it into another set of formulae about what is reasonable. … If it becomes too much about defining the nature of what is reasonable I can see all sorts of dangers going down that route.” (Malcolm Brown)
If reasonable accommodation is used in relation to religion, the meaning of such accommodation will at times be hard to assess because the impact may be subjective and difficult to quantify at times. In terms of such employment legislation, reasonable accommodation would need to work both ways with the employer and employee genuinely seeking to accommodate each other’s position. Whilst an employer would need to show that reasonable steps had been taken to accommodate an employee’s religious beliefs, the employee would have to demonstrate that they were willing to accommodate the values of those who disagreed with them.
Given the levels of religious illiteracy in government and other public bodies highlighted earlier in the report, reservations were made about the capacity of the courts to take an active role in deciding what is or is not reasonable in relation to the accommodation or manifestation of belief. In particular concern was raised in relation to the courts lack of acknowledgment of the othodox Christian belief that marriage should be between on man and one woman. In recent cases, they have not accepted that a restriction of the outworking of this belief is an undue restriction on an individual’s freedom of belief or expression. Consequently, there is an inherent privilege of sexual orientation rights over religious belief in equality law.
In light of this argument for reasonable accomodation, the report recommends that further research is conducted into how statutory guidance for reasonable accommodation can be developed. It also recommends that the Equalities and Human Rights Commission (EHRC) should also be restructured to include and to better represent religious beliefs.
Attention was then turned to the problems relating to relationships between local authorities and churches or Christian organisations. The former secretary of state for local government and communities, Rt Hon John Denham MP was applauded for issuing a set of mythbusting guidance for local authorities on how they can work with faith groups. However, cases where Christian organisations are marginalised or excluded because of the manifestation of beliefs continue to persist.
Following recent high profile court cases regarding the religious beliefs of those wishing to foster or adopt, there is now some confusion about the place of religious people as prospective foster parents and adopters. Local authorities lack guidance as to how they should work with people with religious beliefs.
The report makes recommendations at this point that government departments should develop improved guidance for local authorities on how to deal with faith groups and that they should be encouraged to work more closely with Christian groups, as well as other faith bodies. Also, government should provide clear guidelines to local authorities that are unequivocally supportive of children being fostered and adopted by people with religious beliefs. Such guidance should affirm and support Christians to foster and adopt.
The restrictive effect of guidance from some professional bodies covered in the provious section of the report is seen to be in need of reform:
‘The guidance as currently issued leads to a presumption against accommodating any public outworking of belief. Such a perspective is perpetuated by a view that religious belief is a private phenomenon with no public effect. Freedom of religion, and the manifestation of belief, naturally entails a public aspect of such belief. Professional guidance that requires adherents of a faith to leave the central driver for their identity at home demonstrates a fundamental misunderstanding of Christianity and the role that belief plays in motivating actions.’
The guidance issued by the Department for Education is considered to be the best produced by any government department. It clearly states that teachers have the freedom to express their personal views on sexuality as long as this does not result in the discrimination of others. The report recommends that the freedom to share personal beliefs in the same manner should also be included in such guidance. Recommendation is made that the government should develop and disseminate guidance that educates professional bodies about religious identity and religious freedom, and encourages consistent application.
Under Section 5 of the Public Order Act, someone can be arrested for ‘insulting behaviour’.
‘Tolerance is too often assumed to mean not offending people whom you disagree with. As such, it differs fundamentally from respect – which is about acknowledging difference and living beside people with whom you may have profound disagreements, even to the point that their views cause you offence.’
The report believes that the bar has been set too low as to what constitutes ‘insulting behaviour’. As it stands, judgment is based on the subjective feelings of the person who has been offended. This application of the law has in several cases led to an undue restriction of the freedom of expression. In one such case a couple inquired of their council how much of taxpayers’ money was spent on promoting homosexuality. In response the council made a complaint to the police treating it as a homophobic incident.
in response, the report goes on to recommend that Section 5 of the Public Order Act is amended, removing the category of ‘insulting’, or supplementing the Act with clearer guidance. Not only would this foster a culture that respects a diversity of views and identities, but also it would give religious groups as well as entertainers and comedians the freedom to express their views and beliefs without fear of being arrested.
The final part of this section considers the ignorance and deep-seated lack of understanding about the nature and outworking of religious belief in government, the courts, local authorities and the media. The report finds that there is an urgent need for better coordination of government policy in relation to religious belief. Currently the way that the human rights, legal, and community aspects of religion and belief are handled is too complicated. As a result of the 2006 and 2010 Equality Acts, secular humanism is now treated as a belief system.
‘This is reflected in bodies such as the religion and belief consultative group of the Equality and Human Rights Commission, which is comprised of a very broad spectrum which includes the British Humanist Association and the National Secular Society. Despite their respective memberships being tiny compared to those of religious organisations, on the basis of self-identifying as ‘non-religious belief groups’ these organisations insist on being invited to every consultation of government with faith groups and protest when they are excluded. With secularists using a veto to block most proposals by religious groups, the EHRC group eventually ceased to function formally.’
It was also highlighted that government organs that deal with religion and belief are dispersed and unrelated. This potentially leads to confusion and inconsistency of approach from government.
Two final recommendations were made from this section of the report.
‘We recommend that steps are taken to coordinate all relevant policy areas across government. This could take the form of a dedicated unit within the Cabinet Office, or a clearly stated key responsibility for the minister for the Cabinet Office. Such a move would help overcome the complex and confusing arrangements that currently span numerous departments and policy areas.’
‘We recommend that far greater effort is given by government to improving the religious literacy of employees in government departments, local authorities and public bodies. We are aware that in other equality strands stakeholders are used to provide training and support. This is a model that should be used with religion and belief. In order to enhance understanding of religious belief, all levels and aspects of government should engage with faith groups and encourage them to provide training and information.’
All the recommendations given by the report should be commended. I do wonder how many of them are likely to have any chance of suceeding. Section 5 of the Public Order Act already has a consultation being carried out to consider whether it should be amended and will hopefully be changed in future. Guidance to local authorities and government departments should be seen as a realistic objective and deserve to be seriously adopted into future government proposals.
Unfortunately I have little hope at present that the proposals relating to equalities will have any success. In this week’s report by the EHRC, confirmation was again given that religious beliefs are ranked below those of other equality strands when they come into conflict with each other. Reasonable accomodation is a sound principle, but carries with it many difficulties and I cannot see the required time and energy being given to it given the current hostile attitude of the EHRC. Until its role is overhauled little progress is likely to be made.
The final recommendation of the need to bring religious awareness and education into government presents a challenge to faith groups. This is extremely unlikely to happen without the proactive support and work of faith groups. If the Church and Christian organisations wake up to this need and begin to coordinate and develop a strategy to deal with it, then the benefits to society could be considerable. It is a big challenge, but one that needs to be seriously addressed with a good deal of urgency.
You can read the full Clearing the Ground report, executive summary and contributions HERE.