Civil Liberties

Chair of EHRC admits "terrible muddle" over freedom of religion


Theos is a Christian think tank that plays crucial role delving into the sometimes murky relationship between religion and society in this country. It also happens to be an organisation full of lovely people. Their director, Elizabeth Oldfield’s slots on Radio 4’s Thought for the Day are actually worth listening to, Nick Spencer, Head of Research, is the human embodiment of Brains from Thunderbirds and everyone else on the team is always terribly keen to say hello and thank me for attending when I turn up at their events. So it wasn’t a difficult decision to make when I was invited to attend their 2015 Annual Lecture in London on Monday evening.

These lectures are a chance to hear a knowledgeable speaker imparting their pearls of wisdom to us mere mortals. The hope is that I come away enlightened and just that bit more educated than I was at the start of the day. The last time I attended one of these Lectures, I had the guilty pleasure of watching the then Archbishop of Canterbury, Rowan Williams baffling the BBC’s Mishal Husain, who was chairing the evening, as he picked apart the mysterious nature of what it means to be a person.

This time round it was the turn of Baroness O’Neill who as the chair of the Equality and Human Rights Commission (EHRC) should have had plenty to say on her subject of Freedom of Expression and Freedom of Religion. If ever we needed clarity of thought on this weighty subject, then this is such a time and the Baroness is in a perfect position to use all of her intellect to plough a furrow throughCh the field of competing rights and interests. She is a philosopher and ethicist with a list of honours and distinctions that put all but the greatest academics to shame and her brain was once described as ‘terrifying but brilliant’.

Perhaps when so much is expected of someone, it’s hard not to come away disappointed unless they have kept you captivated the entire time, but this is exactly how I felt as the evening drew to a close. The problem was not so much to do with what was said, but what was not said.

This was a lecture that tackled the some of the big issues relating to the Rights to Freedom of Expression (Article 10 of the European Convention on Human Rights) and to Freedom of Religion and Belief (‘thought, conscience and religion’ in Article 9). As we know there are some countries where their importance is ignored or even deliberately opposed with the criminalisation of apostasy, often tied to draconian laws, or various other religious restrictions. Even for countries such as ours that look to uphold and promote these rights there is a tension when dealing with others that blatantly flout them. In China crosses are being ripped down from churches on government orders. Some are being closed down or completely destroyed and Christian clergy are being arrested. But still we do our best to make trade deals and build closer relationships and when the Chinese premier was asked to justify his country’s terrible human rights record by a BBC journalist, President Xi’s explanation was that, “We have found a part of human rights development suited to China’s national conditions.”

We as a country have done a huge amount over the years to form and establish the principle of human rights around the world and yet we find ourselves mumbling when anyone who we’d like to do business with disagrees with these basic frameworks or seeks to challenge the boundaries. At home we’re doing little better; we are in a “terrible muddle about the shape that rights of [freedom of belief and expression] may take” according to Baroness O’Neill. For example, there are ridiculous inconsistencies as to what constitutes a belief or religion. As she pointed out: “It is puzzling to find opposition to fox hunting classified as a ‘religion or belief’, but support for fox hunting not classified as a ‘religion or belief’.” A viewpoint on a single issue cannot be considered a belief, no matter how passionately it is held, in the context of human rights, otherwise we would have an unending list of protected views that would render the whole concept of a right meaningless.

The Baroness also made it clear that the growing belief that there is a right not to be offended is completely misguided and perverse; no such right exists nor should it:

Offence is a subjective matter, and what offends A may not offend B. There is no way of securing freedom of expression if we also maintain that there is a right not to be offended. Speech acts that incite hatred, or that intimidate, or that defraud, or that abuse, can be regulated without putting freedom of expression at the mercy of others. But if there were a right not to be offended, this would put everyone’s freedom of expression at the mercy of others…

Nor can any adequate interpretation of rights endorse supposed rights whose successful exercise would prevent others from enjoying like rights: there can therefore be no rights to coerce, to destroy, or to control others, and no rights not to be offended or not to encounter religions or beliefs that we do not share: any of these supposed rights would evidently undermine others’ like rights.

A right is only a right if it is able to be held by everyone. Anyone claiming special protection of their particular views or beliefs cannot claim this as a right, but too often we are seeing individuals and groups attempting to do just that.

Baroness O’Neill clearly has a great mind and a sound understanding of the concept of human rights and was not afraid to challenge attacks on those rights at a philosophical and ethical level. The problem though is that human rights aren’t to be kept in the heads of philosophers. They are by their very nature pragmatic, defining what we should be able to expect in our everyday lives. The problems rise to the surface when the protection of those rights is withheld or applied in an uneven or detrimental fashion.

Bearing in mind that the Baroness is Chair of the EHRC, one might reasonably expect her to have considered views on high profile cases that have made it into the news. During the questions after the lecture something curious and frustrating developed. When asked about real world examples, the replies were limited often dodged the issue.

Anne Atkins, a regular contributor to Radio 4’s Thought for the Day, asked a very reasonable question about Catholic adoption agencies having to close even though they had offered to refer gay couples to other organisations.  This has been a key example where inflexibility in equality law has done more harm than good. It could have been a defining moment of the evening, but the response was a brief thought on a framework of rights and little else.

The chair of the Conservative Muslim Forum wanted the Baroness’ opinions of the case involving Pastor James McConnell, a preacher from Northern Ireland who described Islam as “Satanic” in a sermon which was then made available on the internet. He has subsequently been prosecuted under the 2003 Communications Act (His Grace has discussed this case previously). In reply the Baroness said she didn’t know the details of the case and thought that the question would relate to the ‘gay cake’ episode that has been widely covered by the media. For neither of these did she offer any hard answers.

Afterwards I was talking to a prominent academic who was intending to gauge her thoughts on whether the concept of human rights is compatible with Islam, but said that he was so disappointed with her limp answers that it simply wasn’t worth bothering.

Human rights have always been a rich source of debate for philosophers and academics. These arguments are necessary in order to produce a solid framework that is fit for purpose, but they will only be of value if those holding the keys are able to apply them and provide solutions when our society encounters conflict in this whole area. To have the Chair of the EHRC ducking the matters at hand or even admit that she hasn’t come to a firm conclusion on some, is more than worrying. She is not the only person on the commission and her job is not to provide all of the solutions, but surely as its figurehead we should expect more? How can the EHRC be trusted on this evidence to be of any practical use if it cannot offer wise guidance and advice on actual situations and circumstances that fall under its remit when needed? If the EHRC can’t offer solid answers to this “terrible muddle”, then what hope have we got?

The full audio and text of the 2015 Theos Annual Lecture is available here.