Wednesday, February 09, 2011

When Rights Conflict

How do you reconcile a conflict between someone’s right to their religion and beliefs and the rights of others?

 

This is a question I first posed in one of my early Podcasts, about three years ago. The show was based on some advice I had needed to write for some public sector managers, who were trying to understand how to balance the wishes of staff with religious convictions against other concerns.

Today people are discussing this same topic on Twitter. However, as I appreciate that not everyone can listen to a Podcast (especially on a computer at work) I thought it was worthwhile digging out the script for this Blog.

In the process of dusting off the script I've done some small amendments to take into account the advances in the law that have occurred since this was first written.

Protections for all of us

The increased level of legal entitlements and protections in Britain over the last few years has provided most people in our society with the tools to be able to insist on fair and equal treatment, and to live their lives without the fear of harassment or violence.

There is hardly anyone left these days whose right to live in their own way is not covered in some shape or form.

  • For women there has been substantial legislation dealing with discrimination in work, training, and the supply of services; the right to equal pay; protections during pregnancy and, of course, rights to contraception, fertility treatment and abortion. There is now also a positive duty on public bodies to promote gender equality
  • Other provisions outlaw discrimination on grounds of race, disability, age and sexual orientation. In some of these instances hate crimes is also specifically dealt with and there are positive duties for public bodies relating to race and disability.
  • The right to thought, conscience and religion is also protected, along with the right to change one’s religion, and to manifest one’s religion or beliefs, along the lines required by article 9 of the European Convention on Human Rights.

In fact, since I wrote this piece, all the above protections and more have been consolidated into a single, more consistent, Equality Act and public sector equality duty embracing all of the so-called protected characteristics.

Exemptions extend privileges for some

Rights regarding religion or belief are not just reflected in direct form, but also indirectly, through the special exemptions that have been written into the laws protecting other groups. This means, for instance, that laws protecting gay and lesbian people’s rights have included clauses that withhold those protections in certain contexts, such as applying for teaching posts in faith schools.

The question of whether each of these exceptions is reasonable, and the circumstances in which they can be claimed to apply, has naturally been a hot topic – especially during the time when these Acts and Regulations have been open for consultation and debated in Parliament.

I’m not going to deal with the detailed ins and outs of the specific exemptions. Suffice to say that when they clearly apply then everyone knows where they stand and the rights and wrongs can be settled by what the law actually says.

Dealing with grey areas and ambiguity

Nevertheless, there are also going to be circumstances where the position isn’t so clear, or where someone misunderstands the limits of what the law protects on either side. In those cases it’s important to be aware of exactly what the Human Rights say – and, just as importantly, -- what they don’t mandate.

Let’s consider some examples first. I’m going to do that by considering the kinds of situations that could arise in health and social care. However, the same could well apply in other settings too:

In a hospital or clinic some staff may inevitably voice objections towards treating certain service users or working with particular colleagues on the grounds of their religion or beliefs.

This could arise, for instance, where the situation involves people who are known to be lesbian, gay, bisexual or transgender, or where the individual concerned belongs to a another religion or expresses very different beliefs.

Similar conflicts might also arise the other way around, such as a patient saying that, on the grounds of their personal religion or belief, they don’t wish to be treated by an openly gay man, a member of staff from a particular race or religion, or even a member of staff of a particular gender.

Indeed it‘s conceivable that a conflict might arise between an individual’s religion or beliefs and just about every form of legislated protection for individual rights.

That is, it’s possible for conflicts to arise involving religion or belief and someone else’s gender (or gender presentation), racial / ethnic background, disability, sexual orientation, age or another religion.

Some working principles

Whatever the circumstances, managers must be prepared to deal with these potential conflicts of rights in a consistent, firm and confident manner.

It’s also vital to draw a distinction between conflicts that really do arise from a firmly held religious teaching or belief, and the more general case of someone expressing a discriminatory attitude.

This means we need clear ground rules, and a logic that’s simple enough to explain to all concerned. You’re more likely to be successful if the rule can be seen to be consistent and transparently applied.

The required outcome is the same in all circumstances, of course...

I.e. The legislated rights of all parties need to be upheld.

However, there is a necessary difference to the approach where the issue arises from a potential conflict of the rights rather than simply the exercise of a prejudice on the part of one party.

The essential difference is that in instances where a conflict of two people’s legal rights are concerned a solution must be found, through compromise, which satisfies the rights of both parties.

Prejudice or a genuine issue?

Let’s consider a pair of examples:

  • A practice nurse in a health centre is not willing to give sex education leaflets to a young woman on the grounds of her religion’s position on these issues. This involves a conflict of legislated rights and a means must be found to satisfy the legitimate rights of both parties.
  • A male service user is abusive towards a hospital worker whom he perceives to be gay or lesbian. There is no conflict between rights; the matter is clearly about unacceptable discriminatory behaviour and the required course of action is clear.

Conflicting rights

So, what happens when rights appear to conflict?

In the case of apparently conflicting rights managers must be very clear about what the law protects and what it doesn’t protect.

Clearly, none of the anti-discrimination laws that have been enacted give anyone a right to use their position to impinge on others.

I.e. The fact that all groups in society now have roughly equivalent degrees of protection against direct or indirect discrimination or harassment in employment, training, and the provision of goods, services and housing does not allow anyone to use their protected status as a means of disadvantaging someone else in another group.

To be clear: Nobody has any form of legalised mandate to disadvantage others in order to enjoy their own protection.

Qualified vs unqualified rights

This idea has been embodied into the European Convention on Human Rights since these principles were drafted and endorsed over fifty years ago.

The same concepts are part of the Human Rights Act too.

Some rights are considered to be “unqualified” – i.e. nothing can water down the principles involved. A good example is the provision which says that no one shall be subjected to torture or to inhuman or degrading treatment or punishment (Article 3).

Other rights are referred to as so-called “qualified rights” however. That means that they must be balanced against other competing rights. A good example of a qualified right is the second part of Article 9.

The first part is unqualified:

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.

The second part comes with a qualification though:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

Thus it’s clear that managers can only accommodate the requirements and beliefs associated with membership of a particular religion to the extent that this does not impinge on someone else’s rights.

Putting it all together

How do you put this to use?

A good working approach is to start from the right that everyone has, under the law, to belong to a particular religion, to worship according to its provisions and to hold the beliefs which followers of the religion are expected to have.

This is what the law actually sets out to protect, in accordance with Human Rights Article 9, and the European Community Employment Equality Directive 2000/78/EC.

Insofar as that aspect of religion or belief is concerned, there is little likelihood that belonging, worshipping in a particular fashion or holding particular beliefs will impinge on someone else.

In these circumstances there should not therefore be any conflict to resolve and managers should be able to concentrate on respecting and upholding those rights in an unfettered way. I.e. If someone or something is discriminatory towards a person’s religion then the law is clear that that is wrong.

Difficulties are only likely to arise when the issues move from an individual’s passive observance of their religion to an active status. That’s when you may find that their actions begin to impinge on others.

Of course, the activity may still be alright so long as the result is not discriminatory towards the other person or is perceived by them as harassment.

If that other person’s own rights to be free of direct or indirect discrimination and harassment are impinged upon, however, this is where the right to religion or belief becomes qualified and limited.

Thus (to stay with our health examples) an NHS employee may not use their religion or belief as a mandate to deny treatment to someone else, or to refuse to work with them, or to proselytise or condemn, since any of these are most likely to impinge on the other individual’s rights, which must be balanced.

The challenge in a multicultural society is to be able to live together in harmony in spite of the fact that we all have such different backgrounds and beliefs.

The law reminds us that rights are a shield to defend us. Not a cudgel to impose ourselves on others.

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