Peter Smith (Barrister, Carter-Ruck Solicitors) written evidence

1.    I am a barrister, practising in media and commercial litigation at Carter-Ruck. My practice as a media lawyer throws me headlong into the tussle between the right to privacy (Art 8 ECHR) and the right to free speech and publication (Art 10 ECHR). Furthermore, I engage, pro bono, on religious freedom matters in a variety of contexts, for instance through the Alliance Defending Freedom and the Catholic Union of Great Britain, and I write on this topic. I am also the Research Secretary to the Bow Group.

Tackling discrimination:

“Is Britain becoming a less Christian country and, if so, is this problematic?”

2.    Participation in religious activities such as Sunday church-going is still declining amongst the permanent UK population (i.e. discounting migrants who will return after a few years, such as Catholic Poles). Whilst participation is an important measurement, more worrying is the absence of popular belief in the social ramifications of Christianity: a concern for the unborn, the elderly and the sick, a belief in genuine religious tolerance, and the belief in the lifelong compact between a man and a woman in marriage, for the creation of children and their formation into adulthood. The consequences of loss of belief in these domains has contributed to a coarsening of our society, the use of abortion as a form of contraception, ever-higher rates of divorce, and greater incidence of the pernicious effects of family breakdown on children (higher delinquency, less educational and career attainment, worse health, and a greater chance     of     having     a     dysfunctional     family     life     of     their        own).

“How do we balance anti-discrimination laws with freedom of religious expression?”

3.    Measures prohibiting discrimination on the grounds of sexual orientation and measures prohibiting discrimination on the grounds of religious freedom clash. For instance, in Lillian Ladele’s case.120 In my view, non-participation in same-sex civil partnerships or marriages should be recognised as a protected extension of being an orthodox Christian. However, as the European Court of Human Rights recognised in the case of Ladele, Eweida et al, the ‘right to resign’ is no right at all: it is unfair if an employee’s work function changes from their original employment and it means religious people would be locked out of certain fields of employment and confined to working in ‘safe spaces’.

Instead, the balance should be struck at the point at which genuine harm to the same-sex couple occurs. If, for instance, no registrar was willing to perform same-sex civil partnerships when couples had a legal right to obtain registration of their relationship, then a degree of compulsion might be necessary.

Similarly, the freedom of expression (as an extension of the manifestation of religion) should be extended to the point that a specific hate crime occurs. In the ex parte Core Issues Trust case, the Mayor of London and TfL were wrong to ban adverts for sexual orientation counselling because it might “give offence” to homosexual people. Such advertising should be permitted (even if considered distasteful) until and unless it calls for specific offences to be committed. Otherwise, the option of sexual orientation counselling, which some people may wish to avail themselves of, would be unduly restricted in its marketing and advertisement.

Foreign policy: freedom of religion or belief

“Where and how is religious freedom most under threat in the world?”

4.    Without doubt, Syria and Iraq, although these are uniquely violent and dangerous places. It is impossible even for Sunni Muslims who do not share the Salafism of Da’esh/Isis to practise their faith in peace, let alone Shia or Christians. Many of the worst offenders are in the Arab world and in a band of countries across the Asian Subcontinent.

Leaving aside the special case of anti-Semitism, I think globally Christianity is the most persecuted faith, and I refer you to Aid to the Church in Need’s reports on this.121 Religious freedom is under threat for many reasons, from the physical destruction of churches, monasteries and property owned by Christians, attacks on religious congregations, and softer forms of harassment and abuse, like spitting in the street, sacking workers from attending church on Sunday (a working day in many places in the Middle East and Subcontinent) and banning displays of crosses. The single biggest driver is the virulent form of Islam manifest in Salafism.

“What more can the British Government do to improve religious freedom in particular countries?”

5.    By and large, the UK’s efforts in the worst places are confined to the diplomatic and symbolic, such as the designation of events in Syria and Iraq as genocide. I cannot comment on military action there, but it seems unlikely that military action alone would permanently change the position of Christians to practise their faith openly and without fear. For that, a wholesale conversation of hearts and minds in the Islamic world is needed. In the worst offenders that are at peace, such as Saudi Arabia, Iran, Pakistan and China, diplomatic efforts must be tied to real sanctions and punishments, such as blanket prohibitions on the trade in weapons and material for heavy industry, and severe restrictions on capital flows (e.g. banning the House of Saud from accessing London’s financial markets). Political appetite for such action need not be deterred by rushing for the most punitive measures first; incremental escalation should be applied, tightening the screws unless these regimes steer their countries in more liberal directions.

“Are there examples of projects or interventions that have helped to reduce religious persecution in particular countries of the world?”

6.    My own experience is in using legal mechanisms to reduce persecution in the workplace. Such mechanisms are only as good as the quality of the advocate, the intellectual architecture of the underlying law, the general access to justice available to the claimant (e.g. cost, time, no outside deterring pressure), and a lack of bias from the judiciary. I have taught law in Sierra Leone122 and can testify to how improvements in legal mechanisms allow e.g. people persecuted for converting from Islam to Christianity to face down their persecutors when they are attacked or their property damaged in revenge.

British Bill of Rights

“Should we keep the Human Rights Act, and why?”

7.    The HRA incorporates the ECHR into UK law. It means all actions of public authorities, e.g. government decisions, Acts of Parliament, or legal judgments, must be compatible with the Convention or else liability for remedies attaches, such as for damages or a declaration of incompatibility. My problem is not with 99% of Strasbourg decision, which are substantively the right ones. But what happens when the wrong decision is made? In the UK, Parliamentary sovereignty allows the legislature and executive to balance the judiciary’s decision-making, and correct it if needed. The absence of these corrections in the case of truly fundamental rights like the freedom from torture is fine, and the Convention can be supreme. The UK, incidentally, has an excellent track record in accepting the Strasbourg Court’s decisions, and making amends.

But in cases like prisoner voting (see Hirst v UK), then when the Strasbourg Court applies the inaccurate, taste-based yardstick of ‘proportionality’ and concludes that it is ‘disproportionate’ for prisoners sentenced to less than three years’ imprisonment from being disenfranchised (but not if incarcerated for longer), then there is no way for the UK sensible to disagree. The UK blanket ban has overwhelming democratic support, but without leaving the Convention there is no formal process for ignoring the Hirst decision. This is ridiculous

In conclusion, I support keeping the HRA, but with a Parliamentary override. There needs to be some form of mechanism where the democratic arms of the state can formally control the unelected arms. For instance, if a measure has a two-thirds majority of parliamentarians of both Houses support it, is should have special, axiomatic constitutional importance that courts cannot derogate from.

“How important is it that Britain remains a signatory of the European Convention on Human Rights, and why?”

8.    Supporters of the Convention are foolish to place too much weight on the symbolism of leaving the ECtHR system. Countries like Russia are parties to the Convention but routinely lose cases pertaining to fundamental rights like the right to life, freedom from torture, and right to a fair trial. Not only are they often in breach, but those countries have poor compliance records with decisions and do not make the systematic corrections required (e.g. prison and policing reforms). To say, in this context, that repeated rights-infringers will find succour in the UK leaving the Convention is weak.

Emerging democracies must choose of their own volition to be bound by international human rights norms. Given the sovereignty of states in the international political order there is no reason why regional enforcement mechanisms like the ECHR should be more effective at causing substantive change than organisations like the UN Human Rights Commission or the International Covenant on Civil and Political Rights, and the various UN-level enforcement bodies and special rapporteurs.

Instead, internal political cultures shape attitudes towards the observance of human rights norms.

“Assuming that a British Bill of Rights will replace the Human Rights Act, what should this new bill contain?”

9.    Leaving aside prisoner voting, I think there are two key areas where a new Bill of Rights should amend the law. First, the interplay between measures prohibiting discrimination on the grounds of sexuality or sexual orientation, and measures prohibiting discrimination on the grounds of religion or belief. I would like to see the Bill of Rights contain a firmer defence of religion because, to put it crudely, it is almost always the religious believer who comes off worse when these rights clash, even though the level of apparent harm faced by homosexual people is minimal.

For instance, as a general rule Christian magistrates should be allowed to recuse themselves from deciding cases of adoption by same-sex couples; no one providing a good or service privately should be compelled to act against their conscience (e.g. when faced with a commercial order for baking cakes celebrating same-sex marriage); and employees discharging their work function normally, who find either their terms of employment change or they are otherwise forced to compromise their beliefs, should be protected. In all these cases, the point is to reasonably accommodate the genuine manifestation of a deeply-held religious belief, and one that I think a properly pluralist society should respect. The boundary line should lie at the point where it is impossible to give reasonable accommodation (for example by making a sensible adjustment to work timetables or shift patterns).

I add as a sidenote a serious problem with anti-discrimination law: much of it comes from the UK’s membership of the EU. The EU law-derived measures incorporated into UK law are mainly in the Equalities Act 2010 and its predecessor legislation. The EA 2010 allows a defence only to indirect discrimination, e.g. on the ‘protected characteristic’ of religion or belief, if it is justified as a proportionate response to a legitimate aim, but not to direct discrimination. Article 9 and Convention rights allow either species of discrimination, under a similar rubric of justification. So the law on the one hand allows direct discrimination in certain cases, and on the hand completely bans it. This is a recipe for jurisprudential chaos.123

Second, the balance between the right to private / family life and the right to free expression needs to be carefully considered. The English law is recognising a right to privacy, more accurately known as the right not to have one’s private information misused. The tort has grown out of other rights, like the right to confidence (i.e. secret information) and the right to be free from harassment or intrusion. The right, when expressed in cases like PJS, comes into direct conflict with the media’s right to publish on any matter it chooses. The common law has adopted a two-stage test – is there a reasonable expectation of privacy over the material? If not, publish. If so, is this expectation outweighed by the public interest in publication? Again, if not, publish – but there is much uncertainty as to the legal (as opposed to factual) interface between the two rights.