Tuesday, 10 May 2011

Catholic League v San Francisco - End of the Line

The US Supreme Court has denied Certiorari (ie refused to hear) an Appeal against the decision of the 9th Circuit Court of Appeals involving an Anti-Catholic (or anti-Vatican depending on your point of view) resolution by the City Council of San Francisco.

I blogged on this case 12 December 2010 and the details can be read there.

Monday, 9 May 2011

Belief in the BBC is a Religion ??

Sometimes cases are reported where I instinctively check my diary to make sure that it isn't April Fools Day. I felt this when I read that an Employment Tribunal had decided that believing in the BBC and that
“public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion”
is equivalent to a religious belief.

It is important to stress that the Claimant in this case has not won his case all that has happened is that an ET has decided that he can bring the case on the basis of his, alleged, belief in the importance of the BBC's puplic role.

This case and other like it are the direct result of a change to Religious Discrimination law which was brought into effect back in th Equality Act 2006 section 77(1) changed the earlier definition of Religious Discrimination set out in reg 2(1) of the Employment Equality (Religion or Belief ) Regulations 2003 which had said
“religion or belief” means any religion, religious belief, or similar philosophical belief
until this was changed by the 2006 Act to read
(a)“religion” means any religion,
(b)“belief” means any religious or philosophical belief,
(c)a reference to religion includes a reference to lack of religion, and
(d)a reference to belief includes a reference to lack of belief.”

Why this change was made is something that was never really explained in Parliament indeed during the debate it was indicated that the change would have no real significance which does beg the question as to why the change was made in the first place.

Home Office MinisterPaul Goggins MP said (Hansard 6 December 2005 Col 145)
'We know from case law that religion has to be consistent with human dignity; it must have a cogency, seriousness and sense of cohesion about a particular series and set of beliefs. We would expect a philosophical belief to betray the same hallmarks, although it does not revolve around belief in a particular deity'

Home Office Minister Baroness Scotland similarly said (Hansard 13 July 2005 Col 1109)
'The intention behind the wording in Part 2 is identical to that in the employment regulations. However, in drafting Part 2, it was felt that the word 'similar' added nothing and was, therefore, redundant. This is because the term 'philosophical belief' will take its meaning from the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief. Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of Part 2 of the Bill, but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not—I hope I do not give any offence to anyone present in the Chamber—would be support of a political party or a belief in the supreme nature of the Jedi Knights.'

The references to religion having to be 'consistent with human dignity' is a commonmisreading of the European Court of Human Rights case of Cosans v UK ECtHR 25/Feb/82 where the court was not considering the meaning of the words 'religion' or 'religious belief' but was considering the meaning of the phrase 'philosophical convictions'
' In its ordinary meaning the word 'convictions' .....denotes views that attain a certain level of cogency, seriousness, cohesion and importance. …As regards the adjective 'philosophical', it is not capable of exhaustive definition ……the expression 'philosophical convictions' in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' ….and are not incompatible with human dignity'

However this is the definition that has been adopted by the UK Courts when looking at the issue of "philosophical belief" for the purposes of Discrimination Law however the decision by the Tribunal does seem to ignore the debate that took place in Parliament in particular where Paul Goggins said(Hansard 6 December 2005 Col 146)
'philosophical belief is not limitless; for example, it would not be possible to claim that belief in the supremacy of a certain football team qualified as a religion or philosophical belief. Nor, indeed, could that claim be made about belief in the principles of a political party,

Believing in the "mission" of the BBC is coming perilously close to belief in a political party or a political ideology and Parliament never intended such beliefs to be protected by the law.