Religion or belief work at the EHRC

1. Religion or belief work at the EHRC Dr David Perfect Research Manager Equality and Human Rights Commission Visiting Research Associate University of Chester david.perfect@equalityhumanrights.com

2. Outline • Description of EHRC; overview of religion or belief work • Key legislation: equality and human rights law • Earlier (2007-13) legal, research, policy, guidance work • Strategy on religion or belief (2013) • Recent (2014-15) guidance, policy and research work • “Friends of the Chair” meetings (ongoing) • Guidance for employers and service providers (ongoing) • Evaluation of legislative framework (ongoing) • Religion or Belief Network

3. Description of EHRC • National Equality Body established in October 2007; UN National Human Rights Institution since 2009 • Covers nine protected characteristics: age, disability, gender, race, religion or belief, sexual orientation, transgender, pregnancy and maternity, and marriage and civil partnership • GB-wide body with main offices in Manchester, London, Glasgow and Cardiff • Independent public body – sponsor department is Government Equalities Office • Approximately 205 staff in total

4. Overview of religion or belief work • Legal, research, policy and guidance work. Non-legal work since 2013 implements religion or belief strategy • Legal: direct legal assistance or applies to intervene as expert adviser to courts • Research: publishes research and statistics reports • Policy: stakeholder input for projects • Guidance: often for employers and service providers • Specialist team set up in 2014-15: five policy/research and two legal staff in England; two legal or policy staff in Scotland. All work on other areas, e.g. on pregnancy or other research issues. My background is in research

5. Key legislation: equality law • Equality law concerned with direct and indirect discrimination • Initially Employment Equality (Religion or Belief) Regulations of 2003, followed by Equality Act 2006 • Both replaced by Equality Act 2010 – brings legislation together and adds Public Sector Equality Duty (PSED) • PSED: public bodies ‘due regard’ to eliminate discrimination, advance equality, foster good relations • ‘Religion or belief’ broadly defined in Act: any religion; any religious or philosophical belief; a lack of religion; and a lack of belief

6. Key legislation: human rights law • Human rights law concerned with religious freedom • Human Rights Act 1998: right to freedom of thought, conscience and religion into UK from October 2000 • Article 9 (1): absolute right to freedom of thought, conscience and religion, qualified right to manifest • Article 9 (2): freedom to manifest religion or belief subject to ‘necessary’ limitations • Domestic legal cases concerned with right to manifest religion or belief • Key decision at European Court of Human Rights (ECtHR) in January 2013 in Eweida et al case

7. EHRC legislative approach • Equality Act 2006 (S28): can help individuals with legal proceedings in domestic courts involving equality legislation through legal advice or representation. Can also try to resolve disputes. Legal representation through in-house staff or external lawyers • EA 2006 (S30): More commonly, may apply to be a party to legal proceedings involving equality or human rights issues - typically to advise courts on matters within its expertise. Covers domestic courts, European Court of Human Rights and European Court of Justice • Will look first at domestic courts, then at ECtHR input

8. Domestic: balancing rights • Funded and led Hall and Preddy case (same-sex couple in civil partnership refused hotel room). EHRC view that direct discrimination against the two couples under Sexual Orientation Regulations 2007. Also supported broadly similar Black and Morgan case • Gave evidence in Johns case (couple with negative views on same-sex relationships wishing to foster) about the impact on children and young people of views opposed to same-sex relationships • Argued in Catholic Care case (adoption agency seeking to restrict its services to mixed-sex couples) that as a public authority, CC subject to Human Rights Act

9. Domestic: manifestation of belief • Intervened in Ghai case (Hindu seeking right for open air funeral pyre for own funeral. Argued that to deny him an open air funeral pyre would breach his rights to a private and family life • Intervened in JFS case (school refusal to admit a child of a non-Orthodox Jewish mother). Argued that school’s use of an ethnic-based test in selecting students did not comply with the Race Relations Act

10. ECtHR intervention • Main example was intervention in key case of Eweida, Chaplin, Ladele and McFarlane v United Kingdom • May 2011: ECtHR asks UK government to respond to claimants appeals. July 2011: EHRC granted permission to intervene. September 2011: made submission, following informal consultation of stakeholders • EHRC view: domestic courts came to correct conclusions in Ladele/McFarlane; courts may not have given sufficient weight to claimants’ right to manifest their religion or belief in Eweida/Chaplin • ECtHR Jan 2013: Eweida wins case; other three lose

11. Research reports/briefings: 2009-12 • Specialist research: Woodhead and Catto (2009): possible EHRC priority areas on religion or belief; Weller (2011): religious discrimination in Britain, 2000-10; Woodhead (2011): existing and recently published research on key themes; Donald, with Bennett and Leach (2012): religion or belief, equality and human rights in England and Wales • Statistics: Perfect (2011): key religion or belief data • Other research (e.g. Bond et al, 2009, Metcalf, 2009) examined religion or belief alongside other equality strands • All reports available on EHRC website

12. Research: London Met. University • Religion or belief, equality and human rights in England and Wales; project led by Alice Donald and published in August 2012 • Mixed methods, including 67 interviews with different stakeholders, literature review, two online surveys, round table events • Religion or belief interviewees carefully selected to get wide range of views; include representatives of humanist and secular groups • Surveys really ‘calls for evidence’ - not representative • Includes extensive discussion of key legal cases and academic and stakeholder responses to these

13. Key findings: broad consensus • Religion or belief groups are legitimate interest groups, but should not have a privileged role • Reasonable accommodation for religion or belief is beneficial, but should be limits to what is accorded. • Excessive litigation in this area is damaging and the law has a limited capacity to bring about change • Principles, or ‘rules of thumb’, required to pre-empt or resolve disputes in workplace and the community • Practice-based guidance required for religion or belief issues in the workplace to be handled effectively • Clear ground rules for debate in this area, as much previous public discussion intemperate

14. Key findings: lack of consensus • Whether conscientious objection opt-outs beyond those that already exist are desirable • Whether a hierarchy of equality strands exists or indeed should exist - and whether sexual orientation ‘trumps’ religion • Whether Christians are ‘marginalised’ in public life • Whether religion or belief is essentially different from other equality strands • Views about the religion or belief exceptions in the Equality Act 2010 and the extension of the public sector duty to cover religion or belief

15. Policy: Goldsmiths dialogue events • Project carried out by Religious Literacy Leadership Programme at Goldsmiths, University of London • Four dialogue events (Feb-April 2013): cover religion and belief in the public sphere; media and religion or belief; religious diversity in the workplace and service delivery; balancing competing interests • Participants including religious and secular bodies, trade unions, government officials, academics, equality bodies • Final event drew up actions for employers, trade unions, religion or belief bodies, EHRC and government • Summaries of events and other project material published

16. Dialogue events: key findings • No overall consensus, but more agreement on some issues • Contemporary RoB landscape complex, diverse and diffuse • Christianity part of a shared intellectual tradition whatever our own stance • Media do not show range of views across the religious field; can polarise public views on different religions • Differences between the absolute right to hold a religion or belief and the qualified right to manifest it are unclear • Tolerance and mutual respect in discussing issues related to protection of religion and belief is required • Guidance, materials and opportunities for discussion helpful to build competence and confidence in this area

17. Guidance: managing religion or belief • Two guidance documents published in Feb 2013 after the Eweida et al judgment. One advises employers on how to understand the legal implications; the other considers the practical steps they can take when recognising and managing the expression of religion or belief in the workplace • Draws on advice of academic experts, religious and secular organisations and equality bodies • Covers how an employers will know if a request is genuine; what kind of requests they might receive and how to deal with them; whether employees have the right to promote their religion or belief at work; and whether they can refrain from work duties

18. Religion or belief strategy • Shared understandings: a new EHRC strategy to strengthen understanding of religion or belief in public life. Published October 2013. Key aims to: • Improve understanding and practice by employers and service providers. Includes call for evidence and ongoing guidance • Create a more balanced and reasonable dialogue on religion or belief. Includes direct discussions with stakeholders and their involvement in advisory groups • Assess the effectiveness of existing legislation. Includes legal review by Oxford Brookes University • Current (2014-16) programme of work designed to implement this strategy

19. Guidance: marriage same sex couples • Asked by Government Equalities Office to prepare guidance following change in the law in England and Wales in 2013 • Involved convening of a large ‘virtual’ advisory group including religious, secular and humanist organisations, trade unions, equality bodies and academics • Six guidance documents published in March 2014. One described the new law in detail; others aimed at public authorities; religious organisations; schools; the workplace and service delivery. Final document outlined key questions and answers • Similar guidance published in Scotland in 2014-15

20. Policy: call for evidence • Conducted by NatCen Social Research and covered religion or belief in the workplace and service delivery. Call live between mid-Aug and end Oct 2014 • 6 online surveys: employees, employers, service users, service providers, organisations, legal and advice • Key aims to: 1) learn about personal individual experiences 2) achieve many responses 2) find out about a variety of issues from different perspectives 4) hear about positive as well as negative experiences • Report published in March 2015. 2,483 responses: employees (1,636), service users (468), organisations (181), service providers (108), employers (67), legal/advice community (23)

21. Call for evidence: key findings • Some workplaces inclusive. In others, religion seen as a private matter that should not be discussed at work • Perceived discrimination in recruitment, working conditions, promotion and progression, time off work • Beliefs mocked or dismissed; some employees felt unable to challenge discrimination and harassment • Concerns about the balance between freedom to express religious views and rights of others • Divergent views about when desirable and appropriate to discuss religious beliefs • Fairer provision of services between religious/non-religious groups required • Divergent views about opt-outs from work duties

22. Research: review of law • Review by Peter Edge and Lucy Vickers (OBU) of the interpretation and effectiveness of equality and human rights law relating to religion or belief. Covers definitions; legal protection; balancing rights; reasonable accommodation; public sector equality duty • Analysis of primary and secondary sources of British law, including EHRC call for evidence, and four workshops of academics and legal practitioners • Report finalised; expected publication in September • Law generally clear and consistent, but some areas, e.g. definition of belief, need further assessment, or are insufficiently tested, e.g. individual v group rights.

23. “Friends of the Chair” meetings • A series of meetings exploring religious literacy in different contexts. Chaired by Rowan Williams, former Archbishop of Canterbury • Attended by representatives of religion or belief organisations, academics, senior lawyers and others • Meetings to date have examined religious literacy in connection with the law, the City, schools and higher education, media and health • Final two meetings will discuss EHRC report evaluating effectiveness of the law

24. Guidance: employers and service providers • Ongoing preparation by NatCen Social Research. Draws on call for evidence. Large advisory group set up • Extensive input from stakeholders and academic experts who comment on draft documents • Up to 15 key religion or belief topics in the workplace and service delivery with key audience being employers and service providers. Covers what is legally required and good practice • Topics include: a guide to the law; managing religion or belief requests; time off work; dress codes; freedom of expression; and conscientious objection • Due for completion in early 2016; will be published on website and widely disseminated

25. Evaluation of legislative framework • Ongoing EHRC report on evaluation of the effectiveness of the current legal framework on religion or belief. Likely to be published in early 2016 • Draws extensively on Oxford Brookes legal review and will also have significant stakeholder input • Probable topics include the definition of religion or belief; freedom of expression and balancing of rights; and exceptions under the Equality Act. Likely also to look at specific sectoral issues in health and education • Will contain recommendations for the government and other interested parties

26. Religion or Belief Network • Established December 2009. Now nearly 750 members. Includes academics (especially in law, philosophy, religious studies, sociology and theology), stakeholders and others interested in religion or belief issues • Information sent out about once a month to all members by e-mail. Covers EHRC work and that of other members, including forthcoming conferences, seminars, workshops and new/forthcoming publications • New members very welcome! Please ask me afterwards; my contact details are on the final slide THANK YOU

27. Contact details • Dr David Perfect (including for Religion or Belief Network) david.perfect@equalityhumanrights.com • Call for evidence report http://www.equalityhumanrights.com/about-us/our-work/key-projects/your-experiences-religion-or-belief • Research on religion or belief (see RR no. 48, 73, 84) http://www.equalityhumanrights.com/publications/our-research/research-reports • General EHRC research inquiries research@equalityhumanrights.com