Dr James Orr is McDonald Postdoctoral Fellow in Theology, Ethics, and Public Life at Christ Church, University of Oxford.
As the Government presses ahead with its manifesto commitment to introduce a domestic framework for human rights, attention has turned to what this might entail for the future of rights. A report released by ResPublica this week argues that the British Bill of Rights offers an opportunity for Britain to lead the way once again in championing the cause of religious freedom. In particular, it argues that setting the emerging legal doctrine of the reasonable accommodation of freedom of thought, belief, and religion on a firmer footing.
The need for greater clarity in this contentious area has become especially pressing in the wake of the recent judgment in Northern Ireland that a Christian couple had unlawfully discriminated against a customer for refusing to decorate a cake with a slogan in support of same-sex marriage. That judgment reinforced the view that the distinction between protecting a person from discrimination and protecting a belief from criticism has become dangerously blurred. The defendants repeatedly stressed that their refusal to provide a service had nothing to do with the customer’s sexual orientation, and everything to do with their belief that they would be seen to endorse a view of marriage with which they disagreed.
In a speech delivered at Yale two years ago, Lady Hale, the Deputy President of the Supreme Court wondered whether it would be a simpler for lawmakers to introduce a duty to make reasonable accommodation for religious beliefs. In cases involving freedom of religion and conscience, that duty would arise where an employer placed a religious employee at a ‘substantial disadvantage’ relative to non-religious employees. To discharge the duty, the employer would need to show that it had taken reasonable steps to mitigate that disadvantage or avoid it entirely.
Enshrining the doctrine of reasonable accommodation in the Bill of Rights would substantially improve the status quo. In the first place, it would remove the burden on judges to decide if the belief in question could qualify as a core component of the claimant’s religious group, a test that has met with severe criticism in the European Court. Second, it would acknowledge that religious believers want to be treated differently rather than equally – that is, in ways that respect the distinctive character of their ethical commitments. Finally, the power to request that a reasonable accommodation be made is more likely to ensure that concerns are raised and addressed long before recourse is had to costly and adversarial legal remedies.
Given these and other advantages, the increasing levels of institutional and stakeholder enthusiasm for the doctrine are not surprising. It has, for instance, received a strong endorsement from an APPG Report and in the conclusions of a report from the Equality and Human Rights Commission, which acknowledged the inadequacies of the current framework and explicitly identified the principle as a promising way forward. Incursions on the liberty of some are incursions on the liberty of us all. Having proposed a domestic regime for human rights, the Government now has the opportunity to ensure that our differences on fundamental moral and social questions can be freely and respectfully expressed. Seizing this opportunity would motivate society to accommodate its diverse conceptions of human flourishing without turning its courtrooms into battlefields between them.