Scottish Catholic Observer

A new paper on Religious Freedom in Scotland offers a legal contribution to the debate. It outlines the protections contained in international and European legal instruments and in national constitutions. The paper also makes a set of proposals for ensuring the protection of religious freedom in Scotland.

The document highlights key areas in which effective legal protections are particularly crucial to religious communities: Freedom of expression, family life, education, and employment.

A set of proposals suggest how the right to religious freedom could be enshrined in a future Scottish constitution or other fundamental rights document. The paper suggests protections for religious freedom that include the right of religious believers to transmit the beliefs, values and traditions of their communities to their children; the accommodation of religious observance and practice in the workplace; and support for publicly-funded faith schools.

Dr Deirdre McCann of the Durham University’s School of Law said: “Whatever the outcome of the referendum, it is time to think seriously about how religious freedom can be protected in Scotland. Effective protections will allow religious communities to continue to flourish within Scotland’s pluralist society.”

Among the academics who have endorsed the proposal are Scotland’s leading historian, Professor Sir Tom Devine, and one of the world’s leading experts in the law of religious freedom, Professor Ian Leigh.

A spokesman for the Catholic Church said: “Full religious freedom is one of the foundations of any stable society. A reasonable starting point for the constitution of an independent Scotland would be Article 18 of the Universal Declaration of Human Rights which states: ‘Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.’”

— For full report, see below

RELIGIOUS FREEDOM IN SCOTLAND: A LEGAL PROPOSAL

SCOTLAND: A DIVERSE NATION

Scotland’s diversity is worth celebrating. A diverse nation is one that is strong, compassionate, and respects human rights.

The diversity of Scotland’s people embraces its religious communities.

These communities include members of the Church of Scotland, the largest religious group in the country since the Reformation. Throughout history, people have made their home in Scotland from countries around the world. In the nineteenth and twentieth centuries, migrants came to Scotland from Europe, including Ireland, Lithuania and Italy. More recently, migration has been from further afield, including South Asia and Eastern Europe. These new Scots brought with them their diverse cultural traditions and also their religious faiths. These minority communities have deeply enriched Scottish life. As the Scottish Government’s guide on independence, Scotland’s Future, notes,

Scotland values our diverse ethnic minority communities, the contribution they make and the important role they play in enriching Scotland socially, culturally and economically.

The Scottish Government, Scotland’s Future (2013), p 364

Religious communities, including religious minorities, are entitled to this respect and recognition for their contributions to Scottish life.

If Scotland votes for independence in September 2014, the Government intends that the new state will have a written constitution. The constitution would be ‘a statement of the fundamental principles by which a country chooses to live, regardless of the political party in power’ (The Scottish Government The Scottish Independence Bill (2014), p 4). It would be drawn up by a Constitutional Convention. The Government has issued an Independence Bill that would establish an interim constitution until the permanent Constitution had been drafted (Scottish Independence Bill, s 4(1)).

If there is to be a Scottish constitution or any other statement of fundamental rights for Scotland it is our suggestion that it should build upon traditions of diversity and pluralism to celebrate and to strengthen Scotland’s religious communities. Such a document should preserve the rights of religious communities and their members that are reflected in international law and in modern constitutions across the globe.

From this starting point, this paper offers a legal contribution to the debate on the fundamental rights of the Scottish people. It outlines the protections for religious freedom that are enshrined in international and European legal instruments. The paper also draws on national constitutions to indicate how modern constitutional democracies uphold religious liberty. Finally, we make a set of proposals on ensuring legal protection for religious freedom that would uphold the rights of all of Scotland’s peoples and thereby enrich the diversity of Scottish society.

Religious communities in Scottish life

The majority of Scottish people belong to a religious community. The 2011 census confirmed that people of religious faith make up 56% of the population (Scotland’s Census 2011 – National Records of Scotland, Table KS209SCb). 54% of the population is Christian. The largest religious community is the Church of Scotland, whose members include around one-third of Scots. 16% of Scots are Roman Catholic. Others religious communities include Muslims, Hindus, Buddhists, Sikhs, and Jews.  

Religious communities have brought many riches to Scottish life. They have shared their cultures and traditions. Motivated by their faith, and working together as faith communities, these groups have established and supported institutions, including hospices, schools, charities and social groups, which have made essential contributions to Scottish society. Individuals from these groups are also actively involved among the wider community across all facets of Scottish life: in employment, politics, education, community organizations, charities, families etc.

THE LEGAL RIGHT TO RELIGIOUS FREEDOM

Protections for religious freedom offer religious communities and their members the right to share their views in public, to express themselves in the language of their faith, to have support for their institutions, and thereby for these communities to flourish among the diverse communities of Scotland.

The international instruments

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Universal Declaration of Human Rights 1948, Article 18(1)

Religious freedom is a fundamental protection of international human rights law. Centrally, this freedom is protected by Article 18 of the United Nations Universal Declaration of Human Rights (above). Religious liberty is also the subject of a separate international instrument, the United Nations Declaration on Religious Intolerance (1981).

In Europe, religious freedom is ensured by Article 9 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights). The Convention states,

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

European Convention on Human Rights, Article 9(1)

The European Court of Human Rights has stressed that religious freedom is at the heart of the European Convention on Human Rights. As the Court has explained,

As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.

European Court of Human Rights, Kokkinakis v Greece (1993) 17 EHRR 397, p 31

This dimension of Article 9 has been recognised in Scottish case law. In its recent decision in support of the charitable status of the St Margaret’s Children and Family Care Society, for example, the Scottish Charity Appeals Panel decided that since the Society had among its objects the advancement of religion, its rights were protected under Article 9 (St Margaret’s Children and Family Care Society v Office of the Scottish Charity Regulator 2014). Article 9 features in the Scottish Government’s proposals for an interim constitution of an independent Scotland, as part of a recognition of European Convention on Human Rights (ss 26, 27). The interim constitution also separately guarantees equality, including the prohibition of discrimination, on the grounds of religion or belief (s 28).

Freedom of religion across the world

In the vast majority of countries, freedom of religion is included among the human rights that are guaranteed by written constitutions. This right is included, for example, among the sets of fundamental rights and freedoms enshrined in the constitutions of Canada (Charter of Rights and Freedoms, Section 2) and Sweden (Constitution, Article 2).

Legal protections of religious liberty extend to religious belief. They also protect worship and practice. As Lord Nicholls of the UK Supreme Court has noted, religious freedom ‘is not confined to freedom to hold a religious belief. It include the right to express and practise one’s beliefs. Without this, freedom of religion would be emasculated’ (R v Secretary of State for Education and Employment, ex parte Williamson [2005] UKHL 15, 16).

RELIGIOUS FREEDOM IN SCOTTISH LIFE

The right to religious freedom encompasses all areas of life. Yet there are some key spheres in which these legal protections are particularly crucial to protecting religious communities and encouraging diversity. These are: freedom of expression, family life, education and employment.

Freedom of expression

Religious expression is an important part of the mosaic of views and beliefs that characterise modern Scotland.

Many religious people wish to express their religious beliefs as an essential part of themselves. When they are welcome to do so, these individuals are encouraged to enter the public sphere, where they can express their beliefs in an atmosphere of open communication, respect and equal treatment. In a modern pluralistic society, other groups are expected to respect the views of religious communities, even when they do not support them, and members of religious communities are expected to speak respectfully to each other and to others. If this respect is not present, public life will be occupied by a narrower range of voices, lose some of its richness, and no longer represent the diverse voices of the Scottish people.

The right to free expression is recognised in Article 10 of the European Convention on Human Rights. This Article extends to religion expression.

Freedom of expression also protects religious groups from attacks that threaten their religious liberty. Discussion of religious belief is vital and instructive for religious communities and others. Yet too often religious communities are subject to egregious insults that are directed at the communities and their members, rather than at their beliefs. This form of speech threatens to deter members of religious communities from participating in public life. Such hate speech risks marginalising members of these communities within Scottish society. It would  also cause them to keep their true selves to their private lives, losing their valuable contributions to society as a whole. Further, as Ahdar and Leigh have observed, certain ‘attacks on religious groups are closely allied to racism, especially in the case of mono-ethnic religious groups. Much anti-Semitism, Islamophobia, and sectarianism takes this form’ (Ahdar and Leigh 2013, p 434). For these reasons, the prohibition of expression that incites hatred against religious groups is supported by international bodies including the Council of Europe’s Venice Commission (2008).

The European Court of Human Rights has held prohibitions on hate speech to be compatible with the Article 10 protection of free expression.

Hate speech of this kind can already be addressed in Scotland in the recognition of offences aggravated by religious prejudice in the Criminal Justice (Scotland) Act 2003. The proposed interim constitution refers to Article 10 as part of an entitlement to the protections contained in the European Convention on Human Rights (s 26).  

Family life

The significance of the family as the fundamental unit of society is a core feature of human rights documents. In the Universal Declaration of Human Rights,

The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

Universal Declaration of Human Rights 1948, Article 16(3)

The right to family life is as important to religious communities as it is to others. Among the particular needs of these families is to have the liberty to transmit the beliefs, values and traditions of their communities to their children without interference.

This right of families to convey their religion is recognised in international human rights law. The International Covenant on Civil and Political Rights requires that states,

…. have respect for the liberty of parents …. to ensure the religious and moral education of their children in conformity with their own convictions.

ICCPR, Article 18(4)

The European Convention on Human Rights embraces parental right of religious upbringing with its general protection of freedom of thought, conscience and religion in Article 9 (see Re J (child’s religious upbringing and circumcision) [1999] 2 FCR 345,369).

The proposed interim constitution for an independent Scotland refers to the right to religious liberty within the family that is protected by the European Convention on Human Rights. The Scottish Independence Bill includes a provision that would require the Scottish Government and public authorities to safeguard, support and promote the wellbeing of Scottish children (s 29). These bodies would be subject to a duty to respect and comply with the European Convention on Human Rights, and therefore with Article 9 (s 26(3)).

Education

[I]t is time to celebrate diversity and distinctiveness. And to openly welcome the contribution that faith based education can make to Scottish education.

First Minister Alex Salmond, Cardinal Winning Education Lecture (2008)

The rights of religious communities to provide education in accordance with their own beliefs is recognised as a human right. The International Covenant on Civil and Political Rights (ICCPR) requires,

[R]espect for the liberty of parents …. to ensure the religious and moral education of their children in conformity with their own convictions.

ICCPR, Article 18(4)

European states must ensure this right under Article 2 of the first Protocol to the European Convention Human Rights,

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the State, shall respect the right of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions.

European Convention on Human Rights, First Protocol, Article 2

The European Court of Human Rights has stated that Article 2 aims at,

…. safeguarding the possibility of pluralism in education which possibility is essential for the preservation of the ‘democratic society’ as conceived by the Convention (Kjeldsen, Busk Madsen and Pedersen v Denmark 1976, para 50).

This right to education in conformity with religious belief recognises the centrality of community life to religious groups, supports the flourishing of religious communities, maintains a genuinely pluralist society and helps to support the broader cultures of minority groups. It also guarantees a genuine choice for all families. As the Scottish government has recognised, ‘it’s important for parents and pupils to have the choice to attend a faith school, if they want to’ (http://www.scotland.gov.uk/Topics/Education/Schools/FAQs).

The educational dimension of religious freedom, and the choice that it allows, has long been recognised in Scotland. The country’s network of faith schools has sustained the right to religious freedom since the Education (Scotland) Act 1918. By ensuring funding for education on a non-discriminatory basis to minority groups, the 1918 Act was a pioneer of religious freedom.

The schools for the Catholic, Episcopalian and Jewish communities established under the 1918 Act have flourished, expressing the values of these communities and enriching society as a whole. They have also become among the best performing schools in the country (on the educational performance of faith schools generally, see Green 2009). Indeed, the substantial increase in the social status of the Scottish Catholic community – after an era of widespread discrimination in the early part of the twentieth century – has been suggested to be attributable to the network of academically successful Catholic schools (Paterson and Iannelli 2006).

Constitutional protection for faith schools

Protection for faith schools can be enshrined in written constitutions. A constitutional protection asserts the value of religious schools, preserves the right to religious education for future generations, and ensures that there will be no discriminatory treatment of denominational schools.

There is a model for such protection in the Canadian constitution. The Canadian Constitution Act, 1867 preserved the rights of existing schools systems for religious minorities (s 93). This guaranteed the right of these religious groups to publicly-funded schools, ensuring that they did not to assume the burden of paying for private education to ensure their religious freedom. This protection remains in the Canadian Constitution as an affirmation of, and support for, religious liberty. As Chief Justice of the Supreme Court of Canada Beverley McLachlin has observed, this constitutional guarantee was an early recognition of ‘the need to accommodate religious diversity within the rule of law’ (McLachlin 2004, p 18).

The workplace

Laborare est orare (“to work is to pray”)

People of religious faith follow religious practices and customs both as individuals and within their communities. Sometimes these practices overlap with their working lives. In the workplace, religious practices may be relevant, for example, to work schedules (and their compatibility with prayer times and religious holidays), the handling of alcohol, medical procedures, gambling, dress requirements etc.

At the international level, a number of labour treaties incorporate the rights of religious groups. These include conventions of the International Labour Organization (ILO), the UN specialist agency that adopts international-level standards on workplace rights. Anti-discrimination treaties incorporate religious belief as a prohibited ground of discrimination at the workplace (e.g. ILO Discrimination (Employment and Occupation) Convention, 1958 (No.111)). Other international standards require accommodation of workers’ religious beliefs. The ILO Weekly Rest (Commerce and Offices) Convention, 1957 (No.106), for example, requires that the scheduling of weekly rest should as far as possible respect the traditions and customs of religious minorities.

In the UK, equality laws have prohibited discrimination on religious grounds since the 1970s in Northern Ireland and across the UK since 2003. A prohibition on religious discrimination in employment is now included in the Equality Act 2010.

General protections for religious freedom are also increasingly being interpreted expansively to ensure that religious practices are accommodated in modern workplaces. In the recent decision of the European Court of Human Rights in Eweida (2013), for example, the Court found that Article 9 of the European Convention on Human Rights protected an employee’s right to wear a crucifix in the workplace (Eweida and Ors v UK 2013).

Additional protections are provided by UK labour law. Rights to conscientious objection are available to shop workers to refuse Sunday working (Employment Rights Act 1996, Part IV); medical workers not to participate in abortion (Abortion Act 1967, s 4(1)) or embryo research (Human Fertilisation and Embryology Act 1990, s 38); and for Sikhs to be exempt from requirements to wear a hard-hat on construction sites (Employment Act 1989, s 11).

Such protections are an important assurance that religious people will not feel excluded from, or inhibited in, the public sphere or particular occupations. This point was highlighted in the recent decision of the Court of Session on the right not to participate in abortions (Doogan & Another v NHS Greater Glasgow & Clyde Health Board 2013). The Court highlighted the breadth and value of this protection and the accommodation that it provides for religious communities within the law. The Court stressed that ‘legislation such as this should be interpreted in a way which allows [workers] to be true to their beliefs while remaining respectful of the law’ (para 37).

The reasonable accommodation model

The most effective legal frameworks are those that embody a ‘reasonable accommodation’ approach (see e.g. Ahdar and Leigh 2013, Gibson 2013). These laws entitle individuals and groups of employees to an accommodation of their religious practises at work. In this way, the accommodation model recognises and respects diversity in modern democratic states (European Commission 2013). The range of available accommodations can include, for example, respecting religious dress, making adjustments in work schedules to accommodate individual prayer or community celebrations etc.

The US was the first country to enact a statutory duty of reasonable accommodation. The US 1964 Civil Rights Act places a duty on employers ‘to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business’ (Title VII Civil Rights Act, §701 (j)). In Canada, the model has been developed through the interpretation of the Canadian Human Rights Act and was confirmed by the Supreme Court in 1985 (Ontario Human Rights Commission (O’Malley) v Simpson-Sears Limited 1985). The reasonable accommodation model has since become influential. It has also been adopted in the UK Equality Act, although only with respect to disabled workers.

A CONSTITUTION FOR RELIGIOUS FREEDOM: PROPOSALS FOR SCOTLAND’S FUTURE

This paper has explained the significance of legal protections on religious freedom. It has examined the protections for religious freedom embodied in international and European human rights instruments, modern constitutions and existing domestic laws.

The following proposals suggest how the principle of religious freedom should be enshrined in a Scottish constitution or other fundamental rights instrument.

• Scotland’s religious communities and their value to the country as a whole should be recognised in the Preamble to any constitution. Such a provision would recognise the contribution of these groups to Scottish life and should form part of a broader celebration of the country’s diversity.

• Religious freedom should be explicitly included among protected human rights and fundamental freedoms. This protection would encompass the right to manifest religion in teaching, practice, worship and observance, alone or in community. It should accompany broader protections for Scotland’s minority groups.

• A specific prohibition of discrimination on the grounds of religion or belief should be included in any constitution.

• A constitution or other fundamental rights document should recognise freedom of expression, explicitly embracing religious expression.

• A constitution should recognise the family as the fundamental unit of society. Such a provision should explicitly recognise the right of religious communities to ensure a religious upbringing for their children.

• A constitution should recognise the rights of religious communities to have their children educated in conformity with their beliefs.

• Protection for religious education should include specific support for faith schools. Any constitutional document should include an explicit guarantee that the existing publicly-funded denominational school system will be preserved.

• A religious freedom protection in any constitution would help to ensure that employers and workers can agree on how to accommodate the observance and practice of religious beliefs. To fully achieve this objective, a reasonable accommodation model should be adopted.

• Should a Constitutional Convention be convened, it should include faith groups. These groups should include representatives of minority faiths. Other civil society groups that represent Scotland’s minority communities should also be included.

References

Rex Ahdar and Ian Leigh Religious Freedom in the Liberal State (Oxford University Press 2^nd ed 2013)

European Commission for Democracy Through Law (Venice Commission) On the Relationship between Freedom of expression and Freedom of Religion: The Issue of Regulation and Prosecution of Blasphemy, Religious Insult and Incitement to Religious Hatred (Council of Europe 2008)

Matthew Gibson ‘The God “Dilution”: Religion, Discrimination and the Case for Reasonable Accommodation (2013) Cambridge Law Journal 579-616

Elizabeth Green Mapping the Field: A review of the current research evidence on the impact of schools with a Christian ethos (Theos 2009)

Beverley McLachlin ‘Freedom of Religion and the Rule of Law: A Canadian Perspective’ in Douglas Farrow (ed) Recognising Religion in a Secular Society (McGill-Queen’s University Press 2004)

Lindsay Paterson and Cristina Iannelli ‘Religion, Social Mobility and Education in Scotland’ (2006) 57(3) British Journal of Sociology 353-377

The Scottish Government The Scottish Independence Bill: A Consultation on an Interim Constitution for Scotland (Scottish Government 2014)

Scotland’s Future: Your Guide to an Independent Scotland (Scottish Government 2013)