Religion and belief is well protected in the law. The Equality Act 2010 protects religion and belief as a protected characteristic (ss 4 and 10), and adds that a lack of religion or belief is equally protected. Further, Article 9 of the European Convention on Human Rights provides an absolute right to freedom of thought, conscience and religion, and, a qualified right in relation to the manifestation of these. There are also many laws which repeal previous statutory provisions and rulings which discriminated against religious beliefs.

However the latest census tells us that Britain is becoming less and less religious (see below), so do these laws still matter much? The short answer is ‘Yes!’ Religious issues still arise frequently in litigation. Recently, there have been a number of interesting cases concerning its impact and more are in the pipeline.

Census trends: is Britain becoming less religious?

Between 2001 and 2011 there has been a decrease in people who identify as Christian (from 71.7% to 59.3%) and an increase in those reporting no religion (from 14.8% to 25%). There were increases in the other main religious group categories, with the number of Muslims increasing the most (from 3.0% to 4.8%). Census Report.

So what’s new and what should practitioners be on the lookout for? This article will review some important recent developments.

The starting point: new guidance

Those attempting to understand religious issues from their own personal perspective can be flummoxed by the consequences of the religious heritage of others. Now the new edition of the Equal Treatment Bench Book, published in February 2018, removes all justification for ignorance (see Chapter 9, ‘Religion’ which includes guidance on religious dress such as wearing veils in court, oaths and glossary of religions at Appendix D).

Religious beliefs are no solvent of legality

Article 9 rights do not automatically mean success, though they do often require the most sensitive handling: Re M (Children) [2017] EWCA Civ 2164. This case concerned a conflict between an ultra-orthodox Charedi Jewish community and a father who had been rejected by it on gender transition. The Court of Appeal, commenting that its decision had ‘profound significance for the law in general and family law in particular’, was nonetheless clear that it would not be appropriate to deny the rights of the birth father on the grounds of the difficulties that might be caused by the religious beliefs of others at least to the extent that they were discriminatory.

Sometimes a more robust approach is taken, as in the judgment of the Court of Appeal in Chief Inspector of Education, Children’s Services And Skills v The Interim Executive Board of Al-Hijrah School (Rev 2) [2017] EWCA Civ 1426. This case concerned the lawfulness of segregation in a Muslim school, of boys and girls, for all lessons, breaks, school clubs and trips. The court was easily persuaded that the allegedly separate but equal treatment of the boys and girls was discriminatory because it was less favourable treatment to prevent a boy from mixing with a girl and vice versa. The criticism of the school by Gloster LJ was particularly trenchant.

Administrative practices must be flexible

Article 9 rights can be very important in considering how administrative practices should be developed. They can trump convenience and even superficial equal treatment: R. (o.t.a. Adath Yisroel Burial Society) v HM Senior Coroner [2018] EWHC 969 (Admin). In this case the Admin Court ruled on a policy that: ‘No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officers or coroners.’

This apparently neutral policy was struck down as being over-rigid and discriminatory because of its disproportionate impact on Muslim and Jewish communities that wished burial to follow swiftly on death.

Marriage, partnerships, religion and sexuality

Marriage is historically a religious union between those of opposite sex. The Civil Partnership Act 2004 started to unravel this and it had been thought by some that the Marriage (Same Sex Couples) Act 2013 completed the opening up of this concept to all. However, the 2013 Act did not apply to Northern Ireland and this was challenged in Close & Ors, Re Judicial Review [2017] NIQB 79. The judge was sympathetic but ultimately unhelpful.

It was the failure of the Northern Ireland Assembly to pass such legislation which led to Mr Lee seeking a cake from a Belfast bakery called Ashers with the slogan ‘Support Gay Marriage’. The evangelical owners of the bakery refused to honour his order and complained that their Article 9 and Article 10 rights had not been given due weight by the Northern Ireland legislation equivalent to the Equality Act 2010 prohibitions on discrimination in the provision of goods facilities and services. Their application for permission to appeal and an associated reference by the Attorney General for Northern Ireland were heard by the Supreme Court in May 2018 (Lee (Respondent) v Ashers Baking Company Ltd and others (Appellants) (Northern Ireland) UKSC 2017/0020).

Meanwhile in a judgment of 27 June 2018, the Supreme Court has held in Steinfeld and Keidan v Secretary of State for International Development [2018] UKSC 32 that the Civil Partnership Act 2004 which only permits civil partnerships between same-sex couples must be amended because it discriminates against opposite-sex couples who do not wish to marry but do wish to have a state-registered partnership.

The CJEU: religion and employment

On two recent occasions the Court of Justice of the European Union (CJEU) has had to consider the way in which religion has to be addressed in the employment context. One concerned religious employees and the other a religious employer. On both occasions the court gave judgments whose relevance is likely to survive Brexit and go beyond the world of work to other areas of law.

Religious employees

On the first occasion the CJEU considered two cases essentially heard together which concerned prohibitions on aspects of female Islamic dress (Case C-188/15 Asma Bougnaoui Association de défense des droits de l’homme (ADDH) v Micropole SA and Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions). In essence, the CJEU opted to analyse decisions about banning the Islamic head scarf as involving potentially justifiable indirect religion and belief discrimination (though the judgments are more nuanced). This should ensure the court has the widest flexibility in determining whether there is a justification for any ban, but it does downgrade for some the religious significance of the head scarf.

Religious employers

The second occasion was in February 2018 when the CJEU considered how courts should approach a claim by a religious organisation to refuse to employ a person who was apparently competent to do the job in question but who did not share the faith of the organisation: C-414/16 Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V. The CJEU was particularly careful to emphasise that the courts must scrutinise any claim by an employer that the nature of a job that it required to the appointee to share their religious beliefs.

Conflicts of rights

This growing body of law concerning religion and belief issues concerns conflicts of rights. Such conflicts can arise in almost any context. Sometimes Parliament has addressed them specifically but more often not. Where there is no specific legislation careful advocacy and an informed court are essential. These problems can arise in almost any context.

Contributor Robin Allen QC is Co-Head of Cloisters’ Chambers and Chairs the Bar Council’s Equality and Diversity Committee. He has appeared in many leading discrimination cases.