At least that was the Daily Mail take on comments by Baroness Hale about the Bull B&B case. Baroness Hale is the deputy President of the Supreme Court and was speaking at an Irish Law Society event – the full text is available here. Six months ago she rejected the Bull’s arguments in a key test case, last week she decided not to award costs against the Bulls and now she has said the law has done too little to protect the beliefs of Christians.
The decision not to award costs against the Bulls is highly unusual. They will not now have to pay the significant legal bill of Mr Preddy Mr Hall. The reasons for that decision do not appear to have been made public yet, but will make interesting reading.
Her speech certainly makes interesting reading. In the course of her speech Hale noted the comments of the Attorney General of Northern Ireland with respect to her failure understand religious belief. I have blogged on John Larkin’s comments on Hale and ‘false equivalence’ before. His critique was unusual, and was obviously noted by the Baroness. (Larkin had been due to finish his term shortly after his comments which may have made him freer in this speech, but was surprising reappointed!)
Hale summarised the four cases of Ms Eweida (the BA worker), Ms Chaplin (the cross wearing nurse), Ms Ladele (the registrar) and Mr McFarlane (the Relate counsellor). She spent some time discussing the strongly worded dissenting judgment from two of the Strasbourg judges. They accused the Borough of Islington of pursing a doctrinaire line on the road to political correctness – of blinkered political correctness which clearly favoured ‘gay rights’ over fundamental human rights. Why did she spend so much time on these dissenting voices if she did not have some sympathy for them?
Hale acknowledges that ‘fair minded people may disagree about the application of these principles’ in reference to the four cases. She notes that the European Court allows national authorities a wide margin of appreciation when it comes to striking the balance between competing Convention rights and the UK had not exceeded this. Basically, (for non-lawyers) the Strasbourg Court does not necessary agree with the UK Court’s decisions but they were within the wide margin allowed. Hale seems to accept there may be genuine disagreement about these cases and that the UK courts could have decided them differently (whilst still upholding the law).
Hale asks whether we should be developing, in both human rights and EU law, an explicit requirement upon the providers of employment, goods and services to make reasonable accommodation for the manifestation of religious and other beliefs? And even vice versa? She notes that the Mba case about working on a Sunday, which explores the employers duty to accommodate religious practice, may be coming to the Supreme Court. She declines to comment further but seems to favour the dissenting judges in an Italian case on finding a reasonable accommodation for a Jewish lawyer and notes it would be indirect discrimination to require all employees to work on a friday afternoon (I originally thought this was about Muslim workers but others have pointed out it more likely is about Jews wishing to observe sabbath from sunset on Friday). These comments suggest she would be sympathetic to the Mba case where a Christian has been required to work on Sunday.
Hale concludes. ‘So the moral of all this is that if the law is going to protect freedom of religion and belief it has to accept that all religions and beliefs and none are equal. It cannot realistically inquire into the validity or importance of those beliefs, or any particular manifestation of them, as long as they are genuinely held. It then has to work out how far it should go in making special provisions or exceptions for particular beliefs, how far it should require the providers of employments, goods and services to accommodate them, and how far it should allow for a “conscience clause”, either to the providers, as argued by the hotel keepers in Bull v Hall, or to employees, as suggested by the dissenting minority in Ladele. I am not sure that our law has yet found a reasonable accommodation of all these different strands. The story has just begun.’
Hale and the Daily Mail
Hale doesn’t say she was wrong or that the Bull decision was harsh, contra the Daily Mail. But she does ask whether the courts ‘would be better off with a more nuanced approach.’ There seems to be an acknowledgement that freedom of religion and belief is complex and that the courts have not yet struck the right balance. There also appears to be a softening and it will be interesting to read relevant judgments from Baroness Hale going forward.
(One interesting point to note. Hale commented [p4-5] that religion is unlike sex or race because you can or should be able to choose what you believe. Interestingly, given the subject of her speech, she did not comment on sexual attraction/orientation – is it more like sex and race, or religion? Right now our society seems more open to people changing their sex than their sexual attraction/orientation.)