Published on Halsbury's Law Exchange here.
Lord Denning once wrote “Without religion there is no morality, and without morality there is no law.” It is safe to say that today’s judiciary would not likely agree.
On 10 March Paul Diamond, the barrister who has appeared in a number of recent cases on the issue, appeared with Lord Falkner QC on Radio 4. Mr Diamond argued that recent cases showed the courts trumping the right of religious freedom with the right of sexual equality. He said that religion was a “core” human right which should not be suppressed by “enforced morality”.
Immediately he was forced to concede that there were limits to freedom of religion, such as recognising polygamy (I interpolate that it is not clearly justifiable to ban polygamy where it involves consenting adults), or if some zealot tried to prevent a female child from being educated.
Mr Diamond argued nevertheless that there were far too many restrictions in Britain at present, and that Parliament needed to step in to correct wayward judges.
The answer to Mr Diamond’s concerns is that one is entitled to respect for one’s beliefs – but not respect for those beliefs themselves. Or, to put it another way, one can practice any religion, but not demand that the taxpayer fund that practice, or that employers grant exemptions from duties or requirements on religious grounds (unless the employer and employee freely agree), or that schools grant exemptions from uniform policies or class attendance. Most certainly one cannot expect on religious grounds a different application of the criminal law (see Criminal Law & Justice Weekly, 2011, Vol 175, p 124).
Thus Mr Diamond railed against the British Airways’ ban on a member of staff wearing a crucifix, without acknowledging that the airline had the right to set its own uniform requirements. If one disagreed with the rules, one shouldn’t accept employment there. The only time the state should interfere with the airline’s policy would be if the airline was requiring indecent clothing, or clothing with racially offensive slogans on them, or some other such extreme and improbable example. This would avoid arguments over which symbols are religious as opposed to cultural or anything else, and whether one religion was receiving favourable treatment. Having said that, it does seem unfair that the airline permitted other religious symbols but not the crucifix, and it can hardly be said that the crucifix was likely to have offended any passengers and thereby damaged the airline’s business.
The same goes for the protection of religious – or any other – belief system in the context of employment. Presently the law on that issue is needlessly complex. Instead the law should provide that employees can only be hired, fired, promoted or disciplined according to conduct relevant to their employment.
Ordinarily relevant conduct would not include religious beliefs or many other belief systems. For example, the religious or political or scientific beliefs of a tax accountant would usually bear no relation to her employment, so any adverse treatment resulting from those beliefs would be unfair and potentially actionable. On the other hand, if she were suddenly persuaded after reading a political tract that all taxation was theft, and therefore it was a moral duty not to pay any, dismissal on the ground of her beliefs might well be justifiable. It would also be reasonable for a religious organisation hiring someone to give sermons to inquire into their beliefs ... All too often the present law seems to comprise the usual English method of overly complex regulation with overly complex exemptions, rather than application of principle.
The liberal approach advocated above would be the answer to another case in the news this week, namely the claim of a hunt saboteur that his anti-hunting beliefs should be protected from discrimination in the same way as religion. If he had been employed as a Master of Foxhounds then his beliefs would be relevant to his employment, and his employer could hardly be expected to permit him not to carry out any lawful duties because of his beliefs. If they were not relevant then the employer would be acting unreasonably and unlawfully by taking his views into account in hiring or dismissing him. There is no need for law makers to get bogged down in trying to define “religion”, and what secular philosophies or values deserve equivalent status to religious beliefs.
Of course there inevitably remain grey areas, and the question of whether a local authority should consider the views of prospective foster parents is a good example, though in this respect Mr Diamond went too far in his claimed consequences of the recent case on point. All that was established in that decision was that the authority was entitled to take parents’ views into account, though save in the most extreme cases it should be of little or no relevance.