"intelligent and useful posts on many of the key legal issues"

- Adam Wagner, UK Human Rights Blog

Wednesday, 12 September 2012

New Zealand Human Rights Blog - welcome

As an expatriate New Zealand lawyer I congratulate the founders of the New Zealand Human Rights blog (h/t Adam Wagner on Twitter). As Mr Wagner points out, it seems that the blog will have much of interest to English lawyers.

I would like to make a couple of observations on one of the opening posts on the blog, and relate them to a recent article by Rosalind English on the UK Human Rights Blog.

The NZHR post is meant as an introduction to human rights. I state at the outset that like, the author of the post, I am a strong believer in the principle of individual rights and classical liberalism generally. It is, however, not true to say that these rights are incontestable or that the idea of them can be taken for granted. The post states:

If one argues that with respect to the above the initial premise of moral equality itself requires justification, the appropriate response is that this is an axiomatic truth that, like the epistemological concept of a “basic belief,” is justified in and of itself. One only need consult the words of the American Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal”.

A glance at almost every society in human history - classical, pre-industrial or post-industrial - shows the "truth" of individual rights, at least to modern standards, is anything but universally accepted or considered self-evident.

Perhaps one might respond that the logic of modern human rights was always obvious and simply there to be discovered, like nuclear physics or the principles of powered flight. But human nature is not an objective science, I need hardly add, and even in the present day there are those who hold the belief that various forms of communist theories are the correct form of society, wherein individual considerations are subordinate to the greater good as represented by the interests of the state. North Korea is an extreme example, while for its part Communist China has embraced the adoption of private property rights to the extent of creating a competitive economy while resisting any notion of a democratic franchise or much in the way of numerous other rights such as freedom of expression.

Other countries, meanwhile, hold human rights by definition to be secondary to what they consider divinely ordained rights. Rather than debating rights and freedoms they instead debate the meaning of ancient texts; in other words, they seek revealed truth. I refer of course to theocratic states. For them what is self-evident is the truth of their texts, not the sort of concepts which the American Founding Fathers had in mind, and they will not accept that the starting point is equality and that everything flows from that.

We then come to the second point, which is the familiar debate of how to accommodate religious beliefs in states such as the United Kingdom and New Zealand, where modern notions of equality are accepted as fundamental. The right to religious beliefs and to forms of worship should be respected and protected by law. The problem comes when someone demands that their religious belief should exclude them from provisions of a private contract or the general law including anti-discrimination provisions.

I have written on this subject on a number of occasions.  Here I will confine myself to one passage in the post by Rosalind English mentioned above. She writes:

"You can choose your religion. Race, gender, sexual orientation and disability are immutable. Where a person who has voluntarily adhered to a set of religious beliefs seeks exemption from the requirements of the workplace (and in some cases, those of the 2010 Equality Act), he or she should be in no better position than non-religious person who does not have a theistic credo to back up their views … "

With this I agree generally, but there is an issue with the first two sentences: some argue that they cannot change their religion. They are entitled to that view and the law should not suggest otherwise.

This point is however answered by Ms English thus:

In any event, the courts naturally and logically find no discrimination where both religious and non-religious persons are equally prevented from opting out of civil society’s requirements. There is no discrimination on grounds of religion or belief.

Here is the true distinction between race, gender, sexual orientation and disability on the one hand, and religion on the other. No-one’s race, for example, has anything to do with how they perform a job or other public activity; people do not turn up to work and demand an exemption on the basis they are race X not Y, and if they did they would not receive a sympathetic hearing to say the least. On the other hand, people are entitled to believe that their religious beliefs are immutable and as much an unchangeable part of them as their race, but they are not entitled to ask for separate legal treatment accordingly. I have expanded on this point here and in my forthcoming book.

Finally, Ms English also states in the same part of her article that

“wearing a crucifix is a matter of personal choice, as the Court of Appeal has found …”.

It is inappropriate for the courts to have to determine whether some article of clothing or jewelry is mandated by a faith or is a matter of personal choice or cultural (that is, non-religious) norms, and they should not have to do so. Instead courts should simply consider whether an employer’s uniform policy actively discriminates against any religion or culture. If the policy treats all equally then the grounds for the law interfering are slim.

No doubt, however, many differing opinions will be canvassed in the forthcoming Strasbourg judgment, which all human rights lawyers await with keen anticipation.

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