Deputy president of the Supreme Court suggests a ‘conscience clause’ may protect workers with faith

The relationship between human rights and matters of religion has often been fractious. In a world where a change in legislation invariably leads to conflict between personal freedom and belief, the courts have increasingly been asked to decide on who trumps who.

Many stories have grabbed the headlines, such as the case of Lillian Ladele, a marriage registrar who asked to be excused from carrying out civil partnership ceremonies because, in her opinion, homosexuality is a sin. British Airways employee, Nadia Eweida, was prevented from wearing a visible cross at work, as a result of the airline’s uniform policy.

Then there was Gary McFarlane, a former Relate counsellor, who declined to provide sex advice to same-sex couples. And of course, who can forget, the recent Supreme Court judgment rejecting a challenge by Peter and Hazelmary Bull, the Christian B&B owners, who were fined for discriminating against a gay couple.

Now Britain’s most senior female judge, who rejected the Bull appeal last year, has said that she is yet to be convinced that the law has found a way to strike a “reasonable” balance on matters of religion.

The Daily Telegraph recently reported that while delivering a human rights lecture on a visit to the Law Society of Ireland, the deputy president of the Supreme Court, Lady Hale, highlighted recent claims by two European judges that British Christians are being denied the right to follow their conscience due to “obsessive political correctness”.

Earlier this year, on a visit to Yale Law School, Lady Hale said that disputes could be resolved by introducing a legal requirement to give people reasonable accommodation if their stance did not harm others.

Her recent address in Dublin, however, went much further as she supposedly argued that Christians might invoke a special “conscience clause,” which would protect their right to refuse to do such things that would go against their beliefs; even if those beliefs clashed with current equality laws.

“I am not sure that our law has yet found a reasonable accommodation of all these different strands,” said Lady Hale. “The story has just begun. [The law] cannot realistically inquire into the validity or importance of those beliefs, or any particular manifestation of them, as long as they are genuinely held.”

“It then has to work out how far it should go in making special provisions or exceptions for particular beliefs, how far it should require the providers of employments, goods and services to accommodate them, and how far it should allow for a ‘conscience clause,’ either to the providers, as argued by the hotel keepers in [Bull], or to employees, as suggested by the dissenting minority in Ladele.”

Lady Hale’s thought-provoking lecture resulted in several 140-character limited exchanges of opinion on Twitter between various members of the legal profession. Of course, anyone who has tried to debate a subject via the micro-blogging platform will know that it is not the most suitable forum for impassioned discussion. SJ has therefore given three prominent lawyers involved in the Twitter debate a better platform to consider Lady Hale’s comments and the possibility of a conscience clause being embedded in law.

Providing service

PJ Kirby QC of Hardwicke Chambers commented that Lady Hale posed an interesting question and that “rather predictably her speech was misleadingly summarised by sections of the press and those choosing to misrepresent the contents of her speech in order to advance their particular viewpoint.

“In my lifetime, homosexuality has gone from being a criminal offence to being legalised. Now gay men and women can marry. Change has in one sense been rapid but I recognise that for those discriminated against change can never come quickly enough,” he admits.

“Many Christians, Muslims, Jews and others of faith, or none, sincerely believe equal marriage to be wrong. It is easy but unfair to dismiss all these people as bigots and to hold such views up to ridicule. Should someone who holds such views, however, be dismissed from their employment when their employer requires them to do something that is contrary to their conscience?” asks Kirby.

In Kirby’s view there is a distinction to be drawn between service providers and employees: “A service provider must provide the service that they have chosen to provide without discriminating by reference to any protected characteristic. While the distress and expense that both sides must have gone through in Bull could surely have been avoided, I do not see how a hotel owner can provide accommodation only to those whose bedroom activities complied with their own
moral code.”

However, he says that when a service provider employs people to carry out such services, those employees “who as a matter of conscience object to providing that service should not be required to do so if the employer could take reasonable steps to accommodate the conscience of the employee”.

Reasonable accommodation

Louise Taft, a senior solicitor and joint head of employment law at Prolegal Ltd, believes that equality laws should not have an opt out clause for some members of the public.

“I don’t think [Lady Hale] went so far as to say that equality laws should be so amended. In fact, she said that if the law wanted to protect freedom of religion and belief, it would have to accept all and none.”

For Taft, where there is no good reason to refuse to provide accommodation, an adjustment should be made to the usual rule if this conflicts with a religious belief. “Eweida should have been allowed to wear her cross at work because BA had no good reason to refuse her. Their corporate image was not enough to trump her genuinely held religious beliefs. However, where there is a good reason to refuse a request, it is a lawful interference with religious beliefs, such as health and safety concerns,” she explains.

Taft continues: “The Equality Act requires employers to provide reasonable accommodation for religious believers unless they can justify the rule or practice causing disadvantage. To do otherwise is indirect discrimination. Accommodation should be provided unless to do otherwise would cause harm.

“Equality law protects freedom of religion by recognising that all religions and beliefs, and none, are equal,” states Taft. “The law also now recognises that all sexual orientations are equal. To allow people to opt out of equality laws by discriminating on grounds of sexual orientation because of their religious belief, however genuinely held, would harm that principle.”

Conscience matters

Naomi Cunningham, a barrister at Outer Temple Chambers, argues that no one should be forced, without good cause, to do something they find morally repugnant. However, “people’s consciences – especially, perhaps, under the influence of religion – sometimes require them to do terrible things, but they should still be prevented from acting on their conscience.”

Cunningham asks: “How do we decide when individual conscience trumps the rights of others? There are easy cases such as female genital mutilation. Telling Eweida not to wear a cross at work looks like pointless bossiness. Maybe it was quaint of her to care passionately about this, but clearly she did and where was the harm?”

However, there are often more difficult questions to consider. “One might think Ladele’s conscience could have been accommodated by making sure she wasn’t on duty for civil partnerships. Presumably we’re all agreed that she couldn’t have been permitted to opt out of mixed race weddings on religious grounds. Is distaste for homosexual relations only regarded more tolerantly because it has recently been a majority position?” questions Cunningham.

“I see no reason why it should privilege religion. The conscience of an atheist is as deserving of respect as the conscience of a believer. If a parent refuses vaccination, there’s a difficult choice to be made between risks to the unvaccinated child and its schoolmates, and the harms of coercion. That choice isn’t helped by knowing whether the source of the parent’s objection is a religious leader’s interpretation of mystical writings, or junk science,” she argues.

“What Lady Hale actually said was more nuanced than the headlines,” contends Cunningham. “She didn’t single out Christian beliefs: she said the law shouldn’t choose between religions. That’s actually an argument for great caution in accommodating individual conscience.

“Be careful how you accommodate mainstream Christians, because you’re going to have to accommodate all other religions to the same extent.”

This article was first published in the Solicitors Journal on 2 July 2014 and is reproduced with kind permission.