Religious Expression in Schools - Assignment Example

PART 1: Are rights to religious expression given sufficient protection in schools and workplaces? 1. Introduction The Human Rights Act 1998 (HRA) incorporated the European Convention on Human Rights (ECHR) into UK law and the preamble to the HRA states that its purpose is to “give further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. Furthermore, section 2(1) of the HRA asserts that “A court or tribunal determining a question which has arisen in connection with a Convention right must take into account Convention rights” and any determinations by the European Court of Human Rights. Moreover, section 3(1) imposes a positive obligation on judicial authorities to interpret all legislation “in away which is compatible with the Convention rights”. Accordingly, the HRA “has had the effect of incorporating the European Convention on Human rights into our law giving individuals rights which can be directly enforced in the UK courts”. Additionally, section 6 of the HRA provides that “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”. With regard to the rights of religious expression, Article 9 of the ECHR provides that everyone has the right to freedom of religion, which includes the right to change one’s religion. The Article further provides a right of an individual whether in public or in private to manifest their religion or belief in worship, teaching, practice and observance. Nevertheless, this aspect is conditional and subject to article 9(2) which provides for justifiable interferences with Article 9 as prescribed by law and necessary in a democratic society, in the interests of public safety, the protection of public order, health or morals or protections of the rights of others. To this end, the European Court of Human Rights has acknowledged that in certain societies where various religions co-exist, it may be necessary to place restrictions on the right to manifest one’s religion in order to ensure everyone’s beliefs are respected. This is further bolstered by Article 17 of the Convention, which permits restrictions where the aim is the destruction of other person’s Convention rights. The focus of this analysis is to consider the extent to which rights to religious expression are given sufficient protection in schools and workplaces and I shall address each in turn. 2. Religious Expression in Schools The HRA 1998 imposes an obligation on UK courts to consider ECHR determinations and the Article 9 right, which requires a consideration of the importance given to the Article 9 rights by judicial authority. Firstly, the relationship of the Article 9 rights with other ECHR rights is evidenced in the case of Kokkinakis v Greece where the ECHR asserted that the Article 9 right as regards religion was one of the most vital elements to go to make up identity of believers and therefore this would give special protection to religious views over and above other democratic rights under the ECHR. Moreover, in the Kokkinakis decision, the ECHR asserted that the Article 9 right was just as important to protecting the rights of atheists, agnostics and the unconcerned. Moreover, Article 9 is a freestanding right under the Convention and directly related to this is the prevention of religious persecution based on beliefs. However, it is important to note the limitations of Article 9 right. For example, in the case of Arrowsmith v UK it was held that whilst pacifism was a philosophy protected by Article 9, it did not constitute an absolute right of religion under Article 9 and therefore the distribution of leaflets did not count as a “manifestation”. Nevertheless, the European Court’s approach has highlighted that any interference with the right to manifest one’s religion or beliefs will be in violation of Article 9 unless the interference is prescribed by law and necessary in a democratic society for the achievement of one of the legitimate aims laid down in Article 9(2). Conversely, the ECHR has implemented a wide margin of appreciation in cases where the manifestation of religious or other views are inconsistent with fundamental democratic features of society, which has often impacted the workplace and educational establishments in particular. For example, in the case of Kalac v Turkey the Court found that dismissal of an applicant from the armed forces for voicing religious views conflicting with national principles of secularism was justified under Article 9. Additionally, in the case of Sahin v Turkey the Court held that suspension of a student on grounds of her wearing the Muslim Hijab did not violate her rights under Article 9. The controversial decision was based on the proportionality rationale that ban on religious headgear was necessary to preserve rights of others and the secularity of the country’s educational institutions. As such, the courts have been willing to dilute the Article 9 right under a margin of appreciation and arguably undermines a state’s obligation to uphold the protections under Article 9. The tension between the Article 9 right and societal interests came to a head in the case of R (Begum) v Denbigh High Schoolwhere the applicant argued that the school’s uniform policy preventing the wearing of the Muslim hijab contravened Article 9. The applicant further relied in Article 2 of the First Protocol to the ECHR guaranteeing the right to education in conformity with a parent’s religious convictions. The Court of Appeal argued that the interference with the Article 9 right could not be justified, however the House of Lord (HOL) held that the applicant had not been excluded on religious grounds but for failure to comply with a uniform school policy. As such, the HOL argued that the relevant test was whether the policy struck a fair balance between the girl’s interests and the interests of others including the school and other pupils. On this basis, the HOL felt that the policy accounted for all religions and that in general courts should not intervene in such cases. Similarly, in R (Playfoot) v Millais School Governing Body the court followed the decision of the HOL in the Begum case with respect to a decision by the school to refuse permission to a school girl to wear a purity ring to display her commitment to celibacy before marriage. Alternatively, a media furore highlighted a converse decision in the case of a Welsh Sikh pupil Sarika Singh who won her fight to continue wearing a religious bracelet after two suspensions from school for refusing to remove it. This highlights the lack of consistency in application of the Convention rights, particularly when contrasted with the decision regarding Samantha Devine in respect of the school ban on wearing a crucifix. To this end, Tom Lewis suggests that religious rights appear to be protected depending on the “social end” they relevant right achieves. Lewis further highlights the distinction between the deontological and instrumental approach to religious expression, with the latter facilitating increased autonomy in contrast to societal tolerance under the instrumental line of thought. This is evidenced, if we consider the inconsistencies and difficulties under UK law in contrast to the outright ban on visible religious symbols in France. Similarly, in 2005, Italy effectively banned the Muslim Hijab under anti-terrorist laws on grounds of national security. If we further consider the global position, Chinese citizens engaging in basis religious activities risk arrest unless falling within the lawful religions of Buddhism, Taoism, Catholicism, Protestantism and Islam. 2. Workplace With regard to freedom of religion in the workplace, the position of employees appears to be stronger. For example, in the case of Dubowksa and Skup v Poland it was held that Article 9 imposed a positive obligation on the state to permit individuals to manifest and enjoy their beliefs without interference. This has been taken to give Article 9 horizontal direct effect against employers. For example, in Ahmed v United Kingdom the European Commission agreed that employers should not place restrictions on employee’s right to manifest religion, subject to contractual obligations. Ultimately it will depend on the terms and conditions of employment and in the case of Stedman v United Kingdom, the European Commission held that applicants had accepted reasonable restrictions on right to manifest religion depending on the employment terms and conditions. In this case there was no violation of Article 9 for dismissing someone who refused to work Sundays. Moreover, research indicates that there has been a distinct rise in religious discrimination cases in 2008, with a significant proportion of cases arising from ambiguity amongst employers with regard to faith days for different religions. Alternatively, UK discrimination legislation has further bolstered the position of employee’s with regard to the freedom to religious expression. For example, employees suffering from religious discrimination can potentially bring a claim for race discrimination. Section 3 of the Race Relations Act 1976 (RRA) forbids discrimination on grounds of “colour, race, nationality and ethnic or national origin”. The legislation also prohibits discrimination at all stages of employment, ranging from arrangements as to who should be offered employment to dismissal or any other detriment. With regard to what constitutes discrimination, there is a distinction between direct and indirect discrimination and section 1 of the RRA defines direct discrimination as less favourable treatment on “racial grounds”. Section 4(2) of the RRA further requires that such racial discrimination must result in an adverse consequence. However, in order to bring a claim for indirect race discrimination is inherently limited and applicants have to establish that they are part of an ethnic group and that the discrimination is on grounds of his race in order to incidentally protect the right to religious expression. The RRA does not define “race or ethnic group”, however in the leading case of Mandla v Dowell Leethe House of Lords held that in considering the definition of ethnic group it had to be “identifiable in terms of its ethnic origins if it is a segment of the population distinguished from others by a sufficient combination of shared customs…. And characterised by a common past….they have a distinct social identity based on their historical antecedents”. Moreover, the difficulty is further compounded by the burden of proof. The issue of burden of proof in racism cases was addressed in the Court of Appeal decision in King v Great Britain-China Centre, where it was held that the burden of proof is ultimately on the application to prove race discrimination, however inferences may be drawn from the facts, Nevertheless section 32 of the RRA provides that an employer is liable for acts of employees done in the course of their employment, whether or not done with the employer’s knowledge or approval. The Court of Appeal addressed the definition of acts done “in the course of employment” for the purposes of employer liability under the RRA in the case of Jones v Tower Boot Company. The Court of Appeal distinguished between statutory formulation under the RRA and the common law test for vicarious liability in tort and asserted that it was not appropriate to treat the two tests as identical. The Court of Appeal asserted that the term “in the course of employment” should be given its natural meaning and not the technical meaning used in relation to vicarious liability. This widened the scope of employer liability on grounds of policy justifications that the doctrine of vicarious liability would result in employer’s escaping liability the more serious the harassment became, which would undermine the purpose of the RRA protection. Additionally, section 45 of the Equality Act 2006 prohibits discrimination on grounds of religious belief or lack of belief. Alternatively, In December 2003, the Employment Equality (Religion or Belief) Regulations came into force and prohibit discrimination and harassment in employment and vocational training on grounds of religion or belief. Section 3 of the Regulations defines discrimination and religious belief is defined as meaning any religion, religious belief or similar philosophical belief. As such, an employee has the right not to be treated less favourable that other employees on the basis of her religion or belief, or her perceived religion or belief. Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment having regard to all the circumstances and the perception of the victim. Moreover, an organisation by virtue of being the employer is required to protect employees from discrimination on grounds of religious beliefs. Indeed, the ACAS Code on “Bullying and harassment at work: guidance for employees” (the Code) provides guidance on what constitutes bullying and harassment in the workplace and employers are now liable if failure to protect employees from third party harassment is unreasonable. Additionally, the Chartered Management Institute has published a guide for employers entitled “Religion and Belief in the Workplace”. However, the practical application of this has proved problematic, further compounded by media attention. For example, in Azmi v Kirklees Metropolitan Borough Councilthe EAT upheld the employment tribunal’s finding that orders to remove the veil when teaching was neither direct or indirect discrimination on grounds of religion or belief. The basis for the decision was that Mrs Azmi had not been treated less favourably than a comparator. The decision sparked a media debate regarding the veil and Islam, further perpetuated by the refusal of the EAT to make a case reference to the ECJ. Indeed, the Guardian newspaper coverage indicated that 53% of the public supported Mr Straw’s opinion that veils created a barrier between the Muslim community and other members of the British public. Accordingly, this analysis demonstrates that whilst the Article 9 right is of extreme importance to religious expression, in practice the courts have adopted a liberal approach offering a wide degree of appreciation. This has enabled national courts a wide degree of leeway in balancing religious rights against other social interests, which has created controversy particularly in schools as regards uniform policy. Arguably, the position of employees in the workplace as regards religious expression is strengthened. Conversely, whilst it is submitted that a degree of flexibility and proportionality is necessary, this may leave certain religious and minority groups exposed to lack of adequate protection as evidenced by the media furore surrounding BA employee Ms Eweida, a practising Christian who was told to remove her crucifix for breaching uniform rules. Part 2 In undertaking this piece of work I utilised a combination of statute, articles, books and online sources. A primary source for me was Loveland’s (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press. Not only is Loveland’s book a legal sourcebook, Loveland’s approach is multi-layered with a practical and lateral approach to the topic. This helped me consider the concept of the right to religious expression laterally and consider the wider issues covered by the Article 9 right of the ECHR. . Additionally, Peter Edge’s (2006) “Religion and Law: An introduction”(Ashgate Publishing), was vital in providing a focused and contextual approach to the protection of religious expression in schools. In addition to discussing the case law, Edge’s book provided a fantastic commentary on the controversial topic and I learned that the wide variety of rights impacted by fundamental right to religious expression necessarily requires a balancing act to ensure that the overall objectives of the ECHR rights are protected at large. Moreover, I found the European Convention on Human Rights and the Protocols (particularly Article 2) vital in evaluating the various fundamental rights and freedoms under the ECHR and their relationship with each other. It further enabled me to plan and structure my assignment in considering the focus points of discussion. The Convention again highlights the various categories of rights impacted by the right to religious expression and manifestation of religion, which in turn affect schools and the workplace. Additionally a consideration of the case law as it applied to the Article 9 right in schools and the workplace along with UK legislative initiatives such as the Employment Equality (Religion or Belief) Regulations was further very useful in highlighting the dichotomy between the position of employees and students in educational establishments as regards the right to religious expression. BIBLIOGRAPHY ACAS (2007). Bullying and harassment at work: guidance for employees. London: ACAS available at www.acas.org.uk H. Barnett., (2004). Constitutional and Administrative law. 5th edition Routledge Cavendish A Bradley., (2006). Constitutional and Administrative Law. 14th Edition Longman. A. Carroll., (2007). Constitutional and Administrative Law. 4th edition, Pearson Education Harlow Peter Edge (2006) Religion and Law: An introduction. Ashgate Publishing) Greer Hogan (2002). Constitutional and Administrative Law. Sweet and Maxwell. Tom Lewis (2007). What not to wear: religious rights, the European Court and the margin of appreciation. 56(2) International Comparative Law Weekly 395-414 Loveland (2006). Constitutional, Administrative Law and Human Rights. 4th Edition Oxford University Press Painter and Holmes., (2006). Cases and Materials on Employment Law. 6th Edition Pitt, Gwyneth., (2007). Employment Law. 6th Edition Sweet & Maxwell. European Convention of Human Rights Race Relations Act 1976 Human Rights Act 1998 Employment Equality (Religion or Belief) Regulations 2003 Equality Act 2006 www.hri.org www.managers.org.uk www.opsi.gov.uk Read More