Allied to concern that there has been excessive litigation concerning religion or belief is a view that the law is limited in its capacity to address complex questions of
197 Andrea Williams of Christian Concern rejected the suggestion that Mr Amachree‟s case had been damaged by the press release as „he would have been fired anyway‟ and the publicity ensured that Wandsworth Council could not „get rid of [him] quietly‟. She added that „It‟s last resort to use the media … The client has to make a judgment and they understand what could happen. We care about our clients very deeply and we would never put them in any media exposure that we felt they couldn‟t handle‟.
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multiculturalism and social identity in modern Britain. As one London roundtable participant put it, „courts may simply not be the right place to have this conversation‟.
As this section examines, the law may also be used in ways that have unintended consequences.
Addressing structural disadvantage
Some commentators argue that litigation and divisive debate about, for example, symbols of faith may be „diverting attention from the real problems of disadvantage and exclusion experienced by ethno-religious groups‟ (Hepple, 2011: 43). Some interviewees, especially those from minority religious communities, viewed the law as, at best, irrelevant to addressing structural discrimination and disadvantage.
Interviewees from Muslim communities argued that over the past decade, they had been at the „receiving end‟ of a largely top-down process of defining and redefining individuals and communities. Wahida Shaffi of the Bradford Muslim Women‟s Council commented that public discourse about racism had been eclipsed by a focus on religious (Islamic) identity. While „race‟ and „religion‟ were equally valid in any discussion around human rights and inequality, the preoccupation with a particular approach to „socially engineered integration‟ had not addressed deep-seated
problems of poverty and disadvantage in her community (see also section 3.3). Shaffi added that her community had been alarmed at how cases concerning the wearing of face veils could „play into the hands of far right organisations‟ or become the subject of provocative media coverage. This reminds us that the significance of cases should be assessed by how they reverberate in the social sphere as well as for the legal principles they enshrine.
The limitations of law to address inequality was sometimes framed within a larger perceived tension between the „religious‟ and the „secular‟ worlds (see section 2.5).
Shaykh Faiz Siddiqi of the Muslim Arbitration Tribunal observed that:
I don‟t think we‟re going to see equality emerging through the arm of the law. Individual cases may highlight the problem but will never eradicate it.
That can only be done through a global discussion between faith and secularity.
That „global discussion‟ may also need to entail tensions within the concept of equality itself. This tension is between the traditional notion of formal equality, requiring that cases be treated alike, and substantive notions of equality, requiring equality of opportunity and outcome to address the relative disadvantage and social exclusion of particular groups (Bribosia and Rorive, 2010; McCrudden, 2005; Vickers,
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2011). The public sector equality duty is one vehicle through which substantive equality might be addressed in relation to religion or belief; this is discussed in section 9.4.
Unintended consequences of equality law
Interviewees situated in both the religion and belief and other equality strands argued that equality law has produced unintended consequences which must be recognised and responded to. In particular, it was seen as having encouraged an undue
insistence on the assertion of competing identities and set different groups on an
„intellectual collision course‟ (see also sections 6.4 and 6.8). Legal interventions could in turn make positions more entrenched and compromise harder to achieve.
Charles Wookey argued that:
We have to think carefully about the way that equality legislation has been developed and used if we‟re not going to … sow social division based on people‟s assertion of their identity based on protected characteristics.
That‟s the opposite of what we want to do - and it‟s a continuing risk.
Interviewees identified the potential for adversarial approaches to be pursued both between different religions or beliefs and between religion and claims based on other equality grounds. Malcolm Brown, Director of Mission and Public Affairs for the
Church of England, referred to this as a kind of „me too-ism‟:
One of the anxieties we have about the culture of equalities is that it can transmit the idea that … if other faiths are protected in some of their practices because they‟re intrinsic to that faith, then we ought to be
protected in practices which actually aren‟t intrinsic to ours. It changes the way people think about the practice of their faith - it‟s an unintended consequence.
This observation appeared to be borne out by a large number of responses to the general survey from those identifying as Christian; for example, one commented that either „everything goes or nothing goes‟, while another argued in favour of „one law for all … if a Christian nurse can‟t wear a cross then a Muslim nurse can‟t wear her religious accoutrements‟.
Reverend Sharon Ferguson argued that:
The law gives people permission to change their thinking. Because [the characteristics] are kept separate, it supports this notion that there is a
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conflict between being gay and being a person of faith. It means that within the gay community, faith is seen as the enemy. [Part] of my work is trying to bring faith to the LBGT community and the views on that side of the fence are just as entrenched.
Several interviewees spoke of the need to lower the emotional temperature of discussion about religion or belief since „copy-cat‟ claims for legal recognition and protection were suppressive of debate. A participant involved in inter-faith matters argued that competing claims should be viewed within the context of „good relations‟
and not only equality:
Equality provides a framework in determining what is just … but that doesn‟t mean we shouldn‟t try to reach informal accommodation in ways which don‟t put people in a difficult position. The question 'what are
reasonable expectations about the way in which people should behave?' is a different question from 'what does the law require?' It‟s part of living in a comfortable society [to resolve disputes] short of litigation, even where I could choose to litigate.
(emphasis in original)
This observation has implications for the „good relations‟ mandate of the EHRC, which are discussed in the next section.