Religious exemptions in discrimination law

Cambridge Law Journal

Volumn 66, Issue 2, 2007, Pages 302-312

  Sandberg, Russell ^a   Doe, Norman ^a  

^a CARDIFF UNIVERSITY   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85012452411     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197307000530     Document Type: Article

References (54)

1. See, for example, the Radio Four Today Programme interview Dr. John Sentamu, Archbishop of York (24 January 2007)
2. “Law to put gay rights ahead of religion”, Daily Mail (7 March 2007)
3. “Emboldened churches join forces to scupper new law on gay rights”, The Times (2 December 2006).
4. For a classical treatment, see S. Cohen, Folk Devils and Moral Panics (London 1972), 9.
5. For a discussion of the effect of the Human Rights Act 1998 on religion, see M. Hill, “A New Dawn for Freedom of Religion” in M. Hill, Religious Liberty and Human Rights (Cardiff 2002)
6. for an analysis of recent developments, M. Hill and R. Sandberg, “Is Nothing Sacred? Clashing Symbols in a Secular World” [2007] Public Law (forthcoming).
7. Employment Act 1989, s.11
8. Road Traffic Act 1988, s.16
9. see S. Poulter, Ethnicity, Law and Human Rights (Oxford 1998), ch. 8.
10. Welfare of Animals (Slaughter or Killing) Regulations 1995, SI 1995/731, Reg 2.
11. Criminal Justice Act 1988, s.139
12. R. v. Brown [1993] 2 All E.R 75
13. compare the Female Genital Mutilation Act 2003
14. Blake v. DPP [1993] Crim L.R 556 (carrying out divine instructions not permitted as a defence to a charge of criminal damage).
15. Typically the refusal to grant an exemption is on public health grounds: thus the law provides no special protection for Rastafarians for their use of cannabis on religious grounds (R. v. Taylor [2001] EWCA Crim 2263
16. [2002] 1 Cr. App. Rep. 519
17. R. v. Andrews [2004] EWCA Crim 947
18. courts have accepted that parental religious beliefs are subordinate to the welfare of the child and may be overridden to save the life of a child (Re O (A Minor) (Medical Treatment) [1993] 2 F.L.R 149
19. Re R (A Minor) (Blood Transfusion) [1993] 2 F.L.R 757.
20. See N. Doe and H. Payne, “Public Health and the Limits of Religious Freedom” (2005) 19.2 Emory International Law Review 539
21. P. W. Edge, Religion and Law: An Introduction (Aldershot 2006), ch.3.
22. For example, section 1 of the Adoption and Children Act 2002 recognises the right of children to have “due consideration” to be given to their “religious persuasion”. See also S. Poulter, Asian Traditions and English Law (Stoke-on-Trent 1990), 1.
23. See generally P. Cumper, “Religious Organisations and the Human Rights Act 1998”, in P. W. Edge and G. Harvey (eds), Law and Religion in Contemporary Society (Aldershot 2000), 7
24. P. W. Edge, Legal Responses to Religious Difference (The Hague 2002), 85.
25. See R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford 2005), 359 (s.13 is “rather mild”)
26. P. Cumper, “The Protection of Religious Rights under Section 13 of the Human Rights Act 1998” [2000] Public Law 265.
27. See L. Samuels, “Sexual Orientation Discrimination and the Church: Balancing Competing Human Rights” (2005) 8 Ecclesiastical Law Journal 74.
28. SI 2003/1660. See, generally, N. De Marco, Blackstone's Guide to the Employment Equality Regulations 2003 (Oxford 2004)
29. R. Sandberg, “Flags, Beards and Pilgrimages: A Review of the Early Case Law on Religious Discrimination” (2007) 9 Ecclesiastical Law Journal 87.
30. See R. Sandberg, “To Equality and Beyond: Religious Discrimination and the Equality Act 2006” (2006) 8 Ecclesiastical Law Journal 470.
31. Clause 47 in the Equality Bill outlawing religious harassment was removed by the House of Lords. Their Lordships considered that the clause could have been used by religious groups to obtain an injunction to stop other religions staging events that they considered offensive (this has arisen in Australia where an Islamic association sought to obtain an injunction against an Evangelical Christian Church: Islamic Council of Victoria v. Catch the Fire Ministries Inc [2004] VCAT 2510).
32. The harassment provision in the 2003 Regulations cannot be used to obtain an injunction: see N. Addison, Religious Discrimination and Hatred Law (Abingdon 2007), 111.
33. On religious harassment under the 2003 Regulations, see L. Vickers, “Is All Harassment Equal? The Case of Religious Harassment” [2006] C.L.J. 579.
34. R. Sandberg, “To Equality and Beyond: Religious Discrimination and the Equality Act 2006” (2006) 8 Ecclesiastical Law Journal 470.
35. Including exemptions for charities relating to religion or belief and faith schools. See R. Sandberg, “To Equality and Beyond: Religious Discrimination and the Equality Act 2006” (2006) 8 Ecclesiastical Law Journal 470
36. S. Knights, Freedom of Religion, Minorities and the Law (Oxford 2007), 36.
37. SI 2003/1661. See H. Oliver, “Sexual Orientation Discrimination: Perceptions, Definitions and Genuine Occupational Requirements” (2004) 33 Industrial Law Journal 1.
38. [2004] EWHC 860.
39. Equality Act (Sexual Orientation) Regulations 2007 Regulations 171(1)-(2)
40. Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, Regulations 16(1)-(2).
41. Equality Act 2006
42. Equality Act (Sexual Orientation) Regulations 2007. The exemption in the Employment Equality (Religion or Belief) Regulations 2003 is addressed to employers who have “an ethos based on religion or belief” but that exemption differs significantly from the others in terms of the basis upon which it can be exercised, suggesting that it ought to be seen as an extension of the general occupational exemption which just happens to cover religious groups, rather than an exemption specifically for religious groups.
43. [2004] EWHC 860
44. [2004] I.R.L.R. 430.
45. This means that it becomes vital to define the term “religion”. As the House of Lords recognised in R v. Secretary of State for Education ex parte Williamson [2005] UKHL 15
46. [2005] 2 A.C. 246 (at paragraph [24] per Lord Nicholls and paragraphs [54]-[56] per Lord Walker), once protection is extended to “religion or belief” there is seldom need to articulate a definition of religion as there is no cause to distinguish religion from other beliefs.
47. See R. Ahdar and I. Leigh, Religious Freedom in the Liberal State (Oxford 2005), 110.
48. For instance, one way of determining the matter is to examine the internal laws or other regulatory instruments of faith communities themselves. For example, a Parochial Church Council of the established Church of England meets most of the statutory tests and is therefore definitely an “organisation relating to religion or belief” and is also, we suggest, an “organised religion”: its functions include promotion of “the whole mission of the Church, pastoral, evangelistic, social and ecumenical”, and discussion of matters concerning the Church of England “or any matters of religious or public interest, but not the declaration of the doctrine of the Church on any question”: Parochial Church Councils (Powers) Measure 1956, s.2(2); see N. Doe, The Legal Framework of the Church of England (Oxford 1996), 106 ff.
49. [2004] EWHC 860.
50. For instance, for discussion of the difficulties in determining the “doctrine of the Church of England”, see Clergy Discipline (Doctrine), Report of a Working Group of the House of Bishops (GS 1554, London 2004).
51. For the Church in Wales, see N. Doe, The Law of the Church in Wales (Cardiff 2002), 179
52. see also P. Colton, “The Pursuit of a Canonical Definition of Membership of the Church of Ireland” (2007) Ecclesiastical Law Journal (forthcoming).
53. For the absence of a clear canonical definition of membership in the Roman Catholic Church, see the findings of the Colloquium of Anglican and Roman Catholic Canon Lawyers in J. Conn, N. Doe and J. Fox (eds), Initiation, Membership and Authority in Anglican and Roman Catholic Canon Law (Rome 2005).
54. Labour Party Manifesto 2005, Britain Forward Not Back, 112. The Department of Trade and Industry is reviewing the law “to assess how anti-discrimination legislation can be modernised, simpler and give a fairer legal framework”. A green paper is expected shortly. See: http://www.womenandequalityunit.gov.uk/dlr/index.htm.