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Religion Or Belief, Equality and Human Rights in England and Wales

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Religion Or Belief, Equality and Human Rights in England and Wales Equality and Human Rights Commission Research report 84 Religion or belief, equality and human rights in England and Wales Alice Donald, with the assistance of Karen Bennett and Philip Leach Human Rights and Social Justice Research Institute London Metropolitan University Religion or belief, equality and human rights in England and Wales Alice Donald, with the assistance of Karen Bennett and Philip Leach Human Rights and Social Justice Research Institute London Metropolitan University © Equality and Human Rights Commission 2012 First published Summer 2012 ISBN 978 1 84206 433 7 Equality and Human Rights Commission Research Report Series The Equality and Human Rights Commission Research Report Series publishes research carried out for the Commission by commissioned researchers. The views expressed in this report are those of the authors and do not necessarily represent the views of the Commission. The Commission is publishing the report as a contribution to discussion and debate. Please contact the Research Team for further information about other Commission research reports, or visit our website: Research Team Equality and Human Rights Commission Arndale House The Arndale Centre Manchester M4 3AQ Email: [email protected] Telephone: 0161 829 8500 Website: www.equalityhumanrights.com You can download a copy of this report as a PDF from our website: http://www.equalityhumanrights.com/ If you require this publication in an alternative format, please contact the Communications Team to discuss your needs at: [email protected] Contents Page Acknowledgments i Abbreviations ii Executive summary iii 1. Introduction 1 1.1 Aims of the report 1 1.2 Note on terminology 1 1.3 Context of the report 2 1.4 Methodology 6 1.5 Scope of the report 11 1.6 Guide to the report 12 2. Religion or belief in England and Wales 14 2.1 Introduction 14 2.2 The landscape of religion or belief in England and Wales 14 2.3 Cultural and religious diversity and multiculturalism 16 2.4 Religion or belief and the state 20 2.5 The role of religion or belief in the formation of law and public policy 25 2.6 Authority and representativeness within religion or belief groups 30 2.7 Conclusion 32 3. Discrimination on the grounds of religion or belief 35 3.1 Introduction 35 3.2 Definition and measurement of discrimination 35 3.3 Socio-economic discrimination 36 3.4 Perceived and reported discrimination 37 3.5 Discrimination in the workplace 39 3.6 Conclusion 40 4. The law on equality, human rights and religion or belief 41 4.1 Introduction 41 4.2 The right to freedom of thought, conscience and religion 41 4.3 Discrimination on the grounds of religion or belief 44 4.4 Contextualising legal cases 47 4.5 Selection of significant or high-profile cases 49 4.6 Conclusion 50 5. Case law on equality, human rights and religion or belief 52 5.1 Introduction 52 5.2 Matters of definition in relation to religion or belief 52 5.3 Article 9 in domestic case law 55 5.4 The „filters‟ used by domestic courts in religion or belief cases 57 5.5 The concept of reasonable accommodation 64 5.6 Conclusion 70 Page 6. Competing interests in relation to religion or belief 72 6.1 Introduction 72 6.2 Balancing competing rights 72 6.3 Competing interests in equality law 77 6.4 Debate about a hierarchy between protected characteristics 80 6.5 The issue of conscientious objection 83 6.6 Legal exceptions for religion or belief relating to employment 94 6.7 Legal exceptions for religion or belief relating to goods and services 99 6.8 The problem of legal „overstretch‟ 105 6.9 Conclusion 108 7. Responses to equality and human rights law in relation to religion or belief 111 7.1 Introduction 111 7.2 Attitudes to the law 111 7.3 The Christian „marginalisation‟ narrative 112 7.4 The role of litigation 119 7.5 The limitations of law 121 7.6 The role of the Equality and Human Rights Commission 124 7.7 Approaches to dispute resolution outside the courtroom 131 7.8 Ground rules for conducting public debate 134 7.9 Conclusion 138 8. Implementing equality and human rights in relation to religion or belief in the workplace 141 8.1 Introduction 141 8.2 Evidence about management handling of religion or belief 141 8.3 Survey on „managing equality, human rights and religion or belief in the workplace‟ 143 8.4 Problems and solutions related by interviewees 145 8.5 Guidance on religion or belief in the workplace 150 8.6 Conclusion 152 9. Implementing equality and human rights in relation to religion or belief in public services 154 9.1 Introduction 154 9.2 Health and social care 154 9.3 Education 161 9.4 Public sector equality duty 175 9.5 Conclusion 181 10. Conclusion: advancing debate and practice 183 10.1 Introduction 183 10.2 Areas of broad consensus 183 Page 10.3 The conduct of public debate 186 10.4 Legal „pressure points‟ 188 10.5 Guidance for decision-makers 191 10.6 Future research 191 Appendices 194 Appendix 1 Interviewees 194 Appendix 2 Cardiff roundtable participants 198 Appendix 3 London roundtable participants 199 Appendix 4 Questionnaire 200 Appendix 5 General survey 203 Appendix 6 Workplace survey 206 Appendix 7 Workplace survey: results 217 Appendix 8 Summary of selected legal cases 222 References 234 Useful websites and cases in domestic courts and tribunals 251 Acknowledgments This report was written by Alice Donald. It was researched by Alice Donald, Karen Bennett and Professor Philip Leach. We would like to thank all those who gave interviews or attended roundtable discussions and were so generous with their time and insights. Our thanks also go to Aruna Dudhia for administrative support and Federico Burlon, Hannah Cowking and Tarik Elhadidi for research assistance. Special thanks are given to our advisers: Malcolm Evans OBE (Professor of Public International Law, University of Bristol); Conor Gearty (Professor of Law, London School of Economics); Samantha Knights (Barrister, Matrix Chambers); Voirrey Manson (Senior Equality Manager, NHS Wales Centre for Equality and Human Rights); and Mohammad Nafissi (Associate, Human Rights and Social Justice Research Institute, London Metropolitan University). We would also like to thank Dr Rebecca Catto (Lancaster University) and Professor Maleiha Malik (King's College London) for providing helpful comments on a draft of this report. Thanks are due to Matrix Chambers and the Equality and Human Rights Commission (EHRC) in Cardiff for hosting the two roundtable discussions. We are especially grateful to David Perfect at the EHRC: his knowledge of and interest in the themes of this research, combined with his patient and enthusiastic support, have made the project a pleasure to work on. Our thanks also go to Jonathan Evans, Jayne Hardwick and Karen Jochelson at the EHRC, as well as Paola Uccellari who advised the project in its early stages. i Abbreviations Acas Advisory, Conciliation and Arbitration Service BHA British Humanist Association CIPD Chartered Institute of Personnel and Development ECHR European Convention on Human Rights ECtHR European Court of Human Rights EDF Equality and Diversity Forum EHRC Equality and Human Rights Commission EIA Equality Impact Assessment EVAW End Violence Against Women coalition GMC General Medical Council HRA Human Rights Act 1998 JCHR Joint Committee on Human Rights LGBT Lesbian, gay, bisexual or transgender RBCG Religion or Belief Consultative Group RE Religious education SACRE Standing Advisory Councils for Religious Education SSFA School Standards and Framework Act 1998 ii EXECUTIVE SUMMARY Executive summary Aims of the research In January 2011, the Equality and Human Rights Commission (EHRC) commissioned the Human Rights and Social Justice Research Institute at London Metropolitan University to conduct research on „understanding equality and human rights in relation to religion or belief‟ in England and Wales. The aims were to explore: the state of the law in relation to equality, human rights and religion or belief and different groups‟ responses to the law; approaches to achieving freedom of religion or belief and preventing discrimination on the grounds of religion or belief in the workplace and in public services; situations where interests conflict (or are perceived to conflict) between the different equality „strands‟ or different human rights; principles or approaches that might pre-empt or resolve dilemmas or disputes relating to religion or belief; and equality or human rights concerns that arise in relation to the role of religion or belief groups in the formation of law and public policy. Methodology The research comprised: a literature review covering relevant case law (primarily domestic and European) and wider British and international research; 67 semi-structured interviews with religion or belief groups, employers, service providers and groups concerned with other equality strands, as well as legal experts and academics; roundtable discussion events, one in London involving academics, legal practitioners and policy experts and one in Cardiff involving practitioners and voluntary sector organisations in the fields of health and social care; and iii RELIGION OR BELIEF, EQUALITY AND HUMAN RIGHTS IN ENGLAND AND WALES two online surveys, one aimed at people responsible for managing issues associated with religion or belief in their workplace and the other aimed at all other interested groups. Main findings The religion or belief landscape in England and Wales Evidence relating to the religion or belief „landscape‟ is contradictory and contested (especially Census data) (section 2.2). However, some trends are clear: a decline in affiliation to historic churches; a rise in those stating that they have no religion; and (particularly in England) an increase in faiths associated with post-war and post- colonial immigration, especially Islam. Other trends are also apparent: for example, the growth of independent and black majority churches and the greater significance attached to their religion by minority religious communities compared to those that state a Christian affiliation.
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