Quality | 2010.04.19
The church cannot claim 'superior right' | Philip Henson
If Carey feels there is bias in the judiciary, he should make a complaint, providing evidence, through the normal channels
The former archbishop of Canterbury, Lord Carey, has proclaimed that there is an anti-Christian bias pervasive in the judiciary, setting himself, and the Church of England, on a direct collision course with the judiciary. The challenge comes about after several "persecuted" Christians have been unsuccessful in their claims pursuant to the employment equality (religion or belief) regulations 2003.
Although the religion or belief regulations came into force in 2003 they are still very much in their infancy. According to the most recent statistics from the employment tribunal service employment tribunals accepted 151,000 claims in 2008/9 (pdf) ; of which only 832 where brought pursuant to the religion or belief regulations, and the average compensation award for those successful at tribunal was £10,616.
Many employment law cases have now been portrayed as being brought under the vague all encompassing umbrella of "religious discrimination", rather than a specific strand of the religion or belief regulations. Those cases have received massive publicity. So much publicity in fact, that some members of the judiciary have felt the need to explain what the specific legal issues and principles are, in a particular case.
In the Eweida v BA Plc litigation , for example, Lord Justice Sedley (who delivered the leading judgment in the court of appeal), emphasised what the case was not about: "It is not about whether BA had adopted an anti-Christian dress code, nor whether members of other religions were more favourably treated, nor whether BA had harassed the appellant because of her beliefs."
Several "persecuted Christians" wrote to the Daily Telegraph last week to offer their support to Gary McFarlane whose appeal is currently being considered. One of the main points in their letter was that it is "highly unsatisfactory that Christian beliefs are not tolerated in the workplace, often because the beliefs are themselves considered intolerant."
Many of the cases thus far concern situations where an employee asserts that his or her belief (or the manifestation of that belief) prevents them from carrying out certain elements of their job. Most poignant is the conflict between the belief held by some Christians that homosexuality is sinful, and the laws relating to sexual orientation.
Lord Carey has also called for specialist judicial panels "with an understanding of religious issues". Whilst I applaud Lord Carey, and others, for so vociferously defending Christians in this country at present I am ill at ease at the suggestion that senior individual judges could be asked to hear cases purely on the basis of their understanding of religious (presumably Christian) issues. It is unclear to me how this selection process would be formulated, but in any event, would that not amount to judicial selection?
The independence of the judiciary is axiomatic; it goes to the very core of the constitution of this country. Could Lord Carey\'s request for specific judicial panels to hear religious cases, or asking for specific judges to be excluded, amount to an assertion of a "superior right" for the Church of England? Let\'s not forget that the religion or belief regulations are themselves derived from framework directive 2000/78/EC which set a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation with a view to putting into effect in the member states the principle of equal treatment.
If Lord Carey, or indeed anyone else, is concerned about judicial bias they are able to complain to the Office for Judicial Complaints (with evidence of their concerns) or lobby for further parliamentary consultation, or lobby for legislative change in Europe.
I fear that publicly asking specific senior judges to excuse themselves could create a dangerous ground for future conflict. Would the public support the removal of a judge in a shipping case, in a situation where that judge had previously found in favour of the respondents, or criticised claimant litigants? I think not. Debates concerning religion or beliefs are by their nature very emotive. It would be very interesting to hear the views of the party leaders in the forthcoming election debates as it will be an important issue for the voting public.
For more information, please visit
http://www.guardian.co.uk/commentisfree/[...]19/lord-carey-christian-judges
