Should the law try and correct society's prejudices?

While the 2010 Equality Act seems to be discouraging prejudice, it has also come under attack for limiting freedom

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In 2010, the Equality Act came into force. The explanatory notes to the Act stated that its two main purposes were to “harmonise” existing anti-discrimination law and to strengthen the law to support progress on equality. The Act, in effect, made it illegal to discriminate against someone on the basis of a number of “protected characteristics” - like sexuality, race, age and gender - in certain circumstances.  The ambit of the Act was wide.  It covered any organisation deemed to providing a public function, and even applied to private clubs and associations.

Since the Act came into force, a number of cases have been brought before the UK and European Courts by claimants arguing that they had been unfairly discriminated against.  These included two homosexual men who sued Peter and Hazelmary Bull in 2011, for refusing them accommodation at their Bed and Breakfast.  The Bulls defended the case on the basis that their own religious beliefs prohibited them from offering the couple accommodation.  They lost and were fined £3,600. 

In the judgement of the Court of Appeal, adjudicating on the Bull’s appeal against the fine, Lady Justice Rafferty indicated that the Equality Act did not restrict the rights of the Bulls to hold “outdated” views on homosexuality, but that they were prohibited from expressing them in the “commercial context” they had chosen, because that had the effect of denying the homosexual couple the same rights as straight couples.  Gay rights group Stonewall celebrated the decision, saying it sent an “important message on equality”.

However, a spate of cases before the UK and European Courts this year has raised doubts about whether the Act can deliver on its promise to make society more equal.  Earlier this year, Lillian Ladele’s case came before the UK court of Appeal.  Ladele was a registrar of births, marriages and deaths for Islington Council, who dismissed her for refusing to register civil partnerships on the grounds of her religious belief. 

The Court found that her dismissal was lawful because, firstly, she had not been dismissed on the basis of her religious belief but rather because of her refusal to undertake a part of her employment duties. Secondly, in a similar vein to the judgement in the Bulls case, the Court found that Ladele was still free to hold these beliefs notwithstanding the fact that they prevented her performing what was required of her at work.   Lastly, the Court found that Islington Council were duty bound to require Ladele to perform civil partnerships and consequently, were duty bound to sack her when she refused to do so.

Then there was the case of Shirley Chaplin, who was sacked form the NHS for wearing a crucifix to work.  She had, apparently, been wearing the cross undisturbed for years, until a new uniform policy prevented the wearing of jewellery with the new style of V-Neck uniform tops.  Her claim on the ground of discrimination was dismissed by the Employment Tribunal and she was advised not to appeal. 

These cases, and others like it, prompted a cross parliamentary inquiry into religious freedom under the Equality Act, which was published in February of this year.  It argued that the Act should include further provisions to allow for reasonable accommodation to be made for Christians to express their religious views.  These cases, and the report, appear to highlight issues with the equal application of the Act.

But is the problem with the Equality Act specifically, or with what the Act represents?  Can the law really be used to make society less discriminating, and should it? 

The Courts will say that the law is not taking any role in attempting to regulate beliefs,  but surely Stonewall are right to say that the Act sends certain messages about which attitudes are acceptable in society and which are not?

Further, our attitudes inform how we act in all aspects of our lives.  By punishing the discriminatory actions of the Bulls, the law is undoubtedly, albeit implicitly, punishing the discriminatory attitudes which drive them. 

The UK Courts have shown again and again that genuine freedom and tolerance should be subordinate “supporting progress on equality”.  But should be we so ready to accept the Court’s idea of what constitutes equality, when it so readily involves the denigration of key freedoms?   As Hazelmary Bull left the Court after being fined by the County Court, she said that her case showed how Equality legislation made “some more equal than others”. It may be, that as the Act continues to be used to litigate away individual prejudices, that many more people begin to agree with her.

Luke Gittos is a trainee barrister and convenor of the London Legal Salon. He is chairing the debate Can the law make us equal? at the Battle of Ideas on Saturday 20 October

Independent Voices is partnering with the Battle of Ideas festival to present a series of guest articles from festival speakers on the key questions of our time.

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