Section 2. Have recent changes to the law affected Christian freedoms?
This is part two of the review of the Clearing the Ground report published by Christians in Parliament on the 27th February 2012. You can read part one of the report HERE.
Section 1 of Clearing the Ground discussed the question of whether Christians are being marginalised in society in the UK. Following on from this Section 2 turns its attention as to whether recent legislation in Parliament is adding to the marginalisation of Christian belief. Two pieces of legislation in particular are brought into focus; the Equality Act of 2010 and the Public Order Act.
The Equalities Act is less than two years old, but in that time its impact on Christian organisations and individuals has been considerable. The act represents the most significant piece of legislation relating to the role of religion for many years and it consolidates numerous pieces of law that have dealt with different aspects of equality and anti-discrimination as well as introducing new responsibilities and protections. Some characteristics of the Act such as disability, race and gender were covered by previous laws. In addition to these, new ones were added including religion and belief and sexual orientation.
‘Prior to the introduction of the Equality Act 2010 there was no general positive protection for religious believers within the legal system. Various historic elements of the UK’s unwritten constitution place the Anglican Church in a distinctive and sometimes privileged position, but the general protection of religious belief that the Act and its immediate predecessors introduced is new.’
Paradoxically, now that religion and belief are included in equalities legislation, religious freedom is being put under pressure as tensions arise between different equalities strands. These tensions have been most apparent between the religion and belief strand and the sexual orientation strand. In recent court judgments sexual orientation has taken precedence and religious belief has been expected to adapt in the light of this. The Clearing the Ground report sees this as an unacceptable and unsustainable situation.
‘The assumption behind the law that different treatment in respect of protected characteristics requires special justification is having the effect of suppressing differences of religious and ethical viewpoint.’
“Christians cannot hang up their faith as they enter the workplace. Thus a culture war has arisen out of primary legislation, which has been left to the courts to settle. And indeed the courts have gone about their business on an unfortunate trajectory that appears on the face of it to have left religious believers at the bottom of the heap.” (Lord Carey)
The report also noted that equalities legislation is having an impact on some Christian providers of goods and services. The Sexual Orientation Regulations that followed the 2003 Equality Act prohibit discrimination in the provision of goods and services on the basis of sexual orientation. The implementation of these regulations has led to the closure of the Catholic adoption agencies because of their unwillingness to place children with same-sex couples despite the offer to refer such cases to other agencies.
It has been pointed out that while no provision is made in the Act for conscientious objection, this concept does exist in law in the case of abortion where doctors can refuse to perform abortions. Because of this inflexibility in the Equality Act to allow for diversity of belief between different equalities strands, a hierarchy of rights is emerging in the UK, where the good of the individual is trumping the good of all. This results in some groups becoming politically and legally privileged at the expense of others. The report identifies this as particularly prevalent in relation to sexuality.
‘As contemporary ideas have adapted to express other sexual ethics, the consistency of the Christian view has presented a problem for legislators. Although sexuality is widely acknowledged in society to be intrinsic to identity, religion is not, and our legal categories have come to reflect this contradiction. The reality is that sexuality is more fluid and religious commitment less fluid than the law assumes.’
The report moves on to talk about cases where Christians have been arrested under the Public Order Act. Street preachers and a cafe owner who displayed Bible verses on a screen have had charges pressed against them because others have felt insulted by their actions.
‘While acknowledging the need to prosecute those who would propose violence, we do not accept that the causing of offence should constitute justification for restricting someone’s freedom of speech. We are deeply concerned that the law is currently being applied in a way that allows the causing of offence to prompt an arrest.’
Professional bodies’ inconsistent guidance on how religious beliefs should be accommodated was also highlighted as a cause for concern. Whilst teachers have a good deal of freedom in expressing their beliefs in the school environment, the British Association of Counselling and Psychotherapy (BACP) drew criticism for its inflexibility towards differing viewpoints relating to sexuality.
The final part of this section of the report is given over to the work of The Equality and Human Rights Commission (EHRC). The EHRC is the statutory body that was designed and created to regulate equality in the UK. During the Clearing the Ground inquiry evidence presented was overwhelmingly negative about the EHRC. Many saw it as embodying a secular humanist philosophy of equality and to be ideologically biased against religion and authentic diversity. Many submissions suggested that the EHRC was not fit for purpose. Despite being asked to contribute to the inquiry, the EHRC chose not to.
‘It is our view that the commission has failed to sufficiently represent and advocate for the role of religion in public life and sufficiently balance the outworking of religious belief when there is a tension between it and the other equality strands.’
The section concludes with this summary:
‘Following on from the findings of Chapter 1 this chapter has considered the structural issues that might contribute to the increased prevalence of cases and situations where Christians are finding themselves marginalised. We have concluded that there are some significant problems with the law as it currently stands and in the way that it is interpreted by the courts and applied by local authorities, public bodies and the police.
We consider that the Equality Act 2010 fails to deal with the tensions between different strands of equality policy and subsequent court judgments have relegated religious belief below other strands. Further problems are evident with Section 5 of the Public Order Act 1986, and the way that it is applied by the police. Different professional bodies and government departments handle religion and belief in different ways, showing a clear lack of coordination and understanding of the role of religion in public life. All of these problems demonstrate the prevalence of religious illiteracy in Britain today.’
As more equalities cases involving Christians come to court, it is becoming more and more apparent to me that the Equality Act is flawed. The adaptation of the quote from George Orwell’s Animal farm that, “All men are equal, but some are more equal than others.” holds true in this situation. It is impossible for two diametrically opposing views from two strands of the Equality Act to coexist as it stands. One will always have priority over the other. Given the recent views of Trevor Phillips, the Chair of the EHRC that religious groups should be free to follow their own rules within their own settings but not outside, the future is not looking promising for religious views that are not considered ‘culturally acceptable’. The problem lies in the fact that someone has to make a decision in these equalities cases about whose view is more important and through its actions the EHRC has laid claim to the moral high ground. By attempting to increase tolerance the Equalities Act is in fact doing the opposite and breeding intolerance as no one is able to question the authority of the EHRC.
Until the Equalities Act is revisited so that differing beliefs can be accommodated, then Christians are in for a rough ride. If we want true equality in our society, then we need to stop talking about tolerance of others and start talking about respect.
You can read the full Clearing the Ground report, executive summary and contributions HERE.