Atheist Ireland briefing document for TDs on today’s Equality Bill

Atheist Ireland has sent this briefing document to members of the Dail regarding the Committee and Report Stages today, Wednesday 2 December 2015, of the Equality (Miscellaneous Provisions) Bill 2013

Dear TD,

Atheist Ireland is asking you to support the amendments that will be proposed today to the above Bill by Deputies Ruth Coppinger, Paul Murphy and Joe Higgins.

The Bill as it stands will protect Catholic LGBT teachers at the expense of reinforcing the right to discriminate against atheist and minority faith teachers of any sexuality.

These proposed amendments recognise the need to tackle together the four aspects of the Schools Equality PACT, in which PACT is an acronym for Patronage, Access, Curriculum and Teaching, in order to bring about religious equality in Irish schools.

They also incorporate recent recommendations of the Irish Human Rights and Equality Commission, which Atheist Ireland supports, on the need to establish minimum standards in relation to the nature of religious opt-outs, and the need to deliver the State-prescribed curriculum in an objective, critical and pluralistic manner that avoids indoctrination.

UN Human Rights Bodies

Since the Senate last discussed this, Atheist Ireland has raised this specific Bill with both major UN human rights committees.

In July 2014 the UN Human Rights Committee concluded:

“The Committee is concerned that under Section 37(1) of the Employment Equality Acts, religious-owned institutions, including in the fields of education and health, can discriminate against employees or prospective employees to protect the religious ethos of the institution (arts.2, 18, 25 and 27).”

It said that Ireland should:

“amend Section 37(1) of the Employment Equality Acts in a way that bars all forms of discrimination in employment in the fields of education and health.”

In June 2015 the UN Committee on Economic, Social and Cultural Rights said that Ireland should:

“Take all necessary measures to bring all relevant laws, including the Equal Status Acts 2001 and the Education (Admission to Schools) Bill 2015 in line with the international human rights standards.”

Negates the point of Equality law

This Bill negates the whole point of equality law, by making some types of equality more equal than others. A gay atheist teacher could not be fired because of their sexuality, but they could be fired because of their belief. There should be no right to discriminate against a teacher based on either their sexuality or their belief. The Bill discriminates disproportionately against atheists, and is contrary to the Charter of Fundamental Rights of the European Union (see Appendix 1).

The advice given to Senators on the European Union Employment Equality Directive 2000/78 is inaccurate. The Directive does not require Member States to allow discrimination on the ground of religion or belief. Article 4 merely allows, not requires, Members States to do this in certain circumstances. This exemption was actually negotiated into the Directive by Ireland, specifically in order that the Irish Government could allow religious discrimination to continue in our schools. But it does not oblige Ireland to continue the discrimination.

And Article 8 explicitly allows Member States to introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in the Directive (See Appendix 2).

General Principles of Community Law

Therefore, whatever obstacles exist to a more robust approach to protecting equality, they do not come from this Directive. Also, under Article 4 of the Directive, if a Member State does avail of this option, any national Constitutional factors must be considered alongside the general principles of Community law. These include (See Appendices 3 and 4):

Any direct or indirect discrimination based on religion or belief should be prohibited throughout the Community;
The Union respects equally religious and nonreligious philosophical bodies, and secularism is a ‘philosophical conviction’ that must be respected;
Freedom of thought, conscience and religion is as precious to atheists, agnostics, skeptics and the unconcerned as it is to religious people;
Excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.

Constitutional obligation to discriminate

It now seems that the opposition to protecting the rights of atheists in this Bill comes from a position taken by the Department of Justice that the State is constitutionally obliged to permit this discrimination against atheists to continue.

The Irish Supreme Court examined the current law when the Employment Equality Bill 1996 was referred to it under Article 26 of the Constitution. The Supreme Court found that it was a reasonable balancing in legislation of the different rights involved, including, chiefly, the right to earn a living and the rights to freedom of religion and association. The Supreme Court found that the 1996 Bill was not repugnant to the Constitution.

But this does not mean that it was required by the Constitution. Indeed, the very fact that this Bill is being considered shows that the current Act is not required by the Constitution. And whatever about the State allowing limited discrimination, the Constitution certainly does not require the State to fund such discrimination.

The Justice Minister is now concerned that the current Act’s balance is not a fair one, and that in practice this provision can operate in a way that is unfair to LGBT persons. This is correct, and it is also correct that, in practice, this provision can operate in a way that is unfair to atheists.

This is so blindingly obvious that it is only ignored because we have been culturally conditioned to not notice the injustice involved. If there was an exemption allowing discrimination against gay people, and if anybody suggested keeping the exemption, but amending it so that it could only be used to discriminate against gay people but not also against atheists, you would immediately notice the injustice of such a suggestion.

This Bill undermines religious freedom

Finally, this Bill does not even advance the legitimate aim that it is intended to have, and that is legally essential for discrimination to have legal legitimacy. The Supreme Court accepted that the exemptions were Constitutional, to enable religious bodies to protect the freedom of religion of their members through the ethos of their institutions.

But in practice, it now undermines freedom of religion rather than protecting it, as it also discriminates against the many nominal Catholics who no longer share the beliefs of the Catholic Church. A 2012 MRBI poll found 78pc of Irish Catholics follow their own conscience rather than Church teaching when making moral decisions. A 2013 MRBI poll found just 34% of Catholics in Ireland go to Mass every week. The Marriage Equality referendum result shows that most nominal Irish Catholics do not share the ethos of the Catholic Church on this weathervane issue.

We believe, on considering the following alongside each other:

  • The Supreme Court’s Constitutional test of the 1996 law;
  • The general principles of Community law;
  • The requirements of Directive 2000/78;
  • The requirements of the Charter of Fundamental Rights;
  • The greater awareness in 2015 than there was in 1996 of the equal right to freedom of religion or belief of both religious and atheist citizens as individuals;

that the amendments that are being proposed today are an appropriate balancing of the various rights involved, and we ask you to support them.

Appendices:

1. This Bill discriminates disproportionately against atheists
2. Directive 78/2000 does not require discrimination exemptions
3. Relevant general principles of Community law
4. These principles also protect atheists and secularists Appendix

1. This Bill discriminates disproportionately against atheists

1.1 The Bill essentially amends Section 37 as follows: Subsection 1(a) allows religious bodies, educational or medical institutions to discriminate on the ground of religion or belief, where it is reasonable to do so in order to maintain the religious ethos of the institution (i.e. maintains the status quo). Then Subsection 1(b) places further specified restrictions on such institutions where they are maintained or assisted by recurring grants provided out of public funds (i.e. cannot also be discrimination on another ground; religion or belief is required having regard to the institution’s ethos; and action must be justified by a legitimate aim and proportionate means).

1.2 The Bill therefore starts with the most conservative implementation possible of Directive 2000/78. The State avails of the option that it may allow certain limited discrimination to continue. It then seems to follow the restrictions on such discrimination that are outlined in the Directive, but does so in a way that still discriminates disproportionately against atheists. Also, in a sleight-of-hand, it only applies the new inadequate restrictions to State-funded bodies, and allows other bodies to continue to discriminate on the basis of the existing law (contravening the Directive).

1.3 We argue that the State should move each of these subsections a step closer to equality. State-funded institutions should not be allowed to discriminate at all. Non-State-funded institutions should be allowed very limited exemptions to allow, for example, religions to employ clerics who share their beliefs, but this should not apply to primarily secular jobs such as teacher or doctor.

1.4 The discrimination allowed in this Bill is contrary to the Charter of Fundamental Rights of the European Union, which covers the Equality Directive as part of EU law.

  • The Preamble to the Charter states that the Union places the individual at the heart of its activities. These exemptions give priority to the ethos of institutions over the rights of citizens.
  • Article 52 states that any limitation on the exercise of the rights and freedoms recognised by this Charter must respect the essence of those rights and freedoms, and must be necessary and proportionate. This Bill does not respect the essence of the right to freedom of belief, and it discriminates disproportionately
  • Article 15 guarantees citizens the freedom to choose an occupation and right to engage in work. For atheists and secularists in Ireland, that right is severely limited as the majority of educational establishments in the country have a religious ethos.
  • Article  22 obliges the Union to respect religious diversity. These exemptions prevent this as the majority of schools come under one religious body and atheists and secularists (as well as religious minorities) must adhere to that ethos or risk dismissal.
  • Article 20 guarantees equality before the law, and Article 21 protects against religious discrimination. The exemptions do not protect the essence of the rights guaranteed under the Charter as they are not proportionate given the preponderance of schools that operate under a religious ethos in the country (Article 52.1).
  • The exemptions also severely restrict the right to freedom of thought, conscience and religion (Article 10), Freedom of Expression (Article 11) and Respect for Private and Family Life (Article 7) as atheists and secularists must hide their convictions in order to secure employment as a teacher. Access to employment for any atheist teacher dismissed in a school on the grounds of ethos is severely limited. The exemptions in the Directive were never meant to undermine fundamental freedoms, but that is what this Bill does.
  • Article 52.3 says where the Charter “contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection.”

Appendix 2. Directive 2000/78 does not require discrimination exemptions

2.1 In the Seanad debate on 13 March 2013, Ivana Bacik twice stated that she would prefer a more robust approach, but that Senators had been advised that EU Directive 2000/78 requires a more conservative approach. The two relevant quotes about this advice were:

“We were advised, however, that EU Directive 78/2000 requires a somewhat more conservative approach. Article 4 of that directive gives protection to the right of churches to require individuals working for them to act with “loyalty to the organisation’s ethos”; and
“There is a constraint not only in domestic law but also under EU Framework Directive 78/2000. Article 4 of the directive places constraints on how we can move forward on this, particularly the reference to ensuring “national practice as existing as the date of adoption of the directive”.”

2.2 This advice is based on a misreading of EU Directive 2000/78, and specifically the clause that Ireland negotiated into it in order to have permission to continue to discriminate against atheists. Article 4 actually says that:

1. “Member States may provide that a difference of treatment… shall not constitute discrimination (in certain circumstances)”; and that
2. “Member States may maintain national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive (in certain circumstances)”; and then that
“This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law”; and that
“This Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.”

2.3 So the Directive includes no obligation on Member State to protect the ethos of religious institutions at the expense of the rights of employees to equality. It allows that Member States may (not shall) by law allow certain existing discrimination to continue, and only if a member State chooses to do this, then certain consequences shall follow in conformity with those laws.

2.4 For further clarity, Article 8 makes clear that the Directive outlines minimum requirements, not maximum requirements, for protecting equality. It states that:

“1. Member States may introduce or maintain provisions which are more favourable to the protection of the principle of equal treatment than those laid down in this Directive.
2. The implementation of this Directive shall under no circumstances constitute grounds for a reduction in the level of protection against discrimination already afforded by Member States in the fields covered by this Directive.”

Appendix 3. Some relevant general principles of Community law

3.1 Any direct or indirect discrimination based on religion or belief should be prohibited throughout the Community. The Preamble to Council Directive 2000/78 summarises the general principles of Community law that are relevant to the Directive. It states that:

“11. Discrimination based on religion or belief… may undermine the achievement of the objectives of the EC Treaty”; and “12. To this end, any direct or indirect discrimination based on religion or belief… as regards the areas covered by this Directive should be prohibited throughout the Community.”

3.2 The State has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom. The European Court has stated that:

“29. Finally, in this connection, the Court recalls that, but for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any discretion on the part of the State to determine whether religious beliefs or the means used to express such beliefs are legitimate. The State therefore has a duty to remain neutral and impartial in exercising its regulatory power in the sphere of religious freedom and in its relations with different religions, denominations and beliefs.”

3.3 The State cannot allow registered religious societies to have exemptions from employment equality law, while excluding a religious community that is not a registered religious society from having the same benefits. The European Court stated in 2012 that:

“37. The Court therefore concludes that section 1(2)(d) of the EA Act, which provides for exemptions from the scope of application of that Act in respect of the employment of aliens for pastoral work as part of a recognised religious society, is discriminatory and that the applicant community was discriminated against on the basis of religion as a result of the application of this provision. There has therefore been a violation of Article 14 taken in conjunction with Article 9 of the Convention.”

3.4 The State must protect the rights of individual citizens to education, but religious communities themselves do not have a right to education. This has obvious implications for the balancing of the rights of employees with the ethos of a school. The European Court stated in 2010 that:

“125. The Court reiterates that solely the members of a religious community, as individuals, can claim to be victims of a violation of the right to marry or the right to education, rights which by their nature are not susceptible of being exercised by a religious community itself. Therefore, the applicant churches as religious communities cannot themselves allege a violation of either of these rights.”

3.5 This Bill does not even advance the legitimate aim that it is intended to have, and that is legally essential for discrimination to have legal legitimacy. The Irish Supreme Court accepted that the exemptions were Constitutional, to enable religious bodies to protect the freedom of religion of their members through the ethos of their institutions. But in practice, it now undermines freedom of religion rather than protecting it, as it also discriminates against the many nominal Catholics who no longer share the beliefs of the Catholic Church. A 2012 MRBI poll found 78pc of Irish Catholics follow their own conscience rather than Church teaching when making moral decisions. A 2013 MRBI poll found just 34% of Catholics in Ireland go to Mass every week.

Appendix 4. These principles also protect atheists and secularists

4.1 The State must apply these principles equally to religious and nonreligious philosophical beliefs. We in Ireland are only slowly beginning to realise that atheists and secularists have the same protection as religious believers with regard to these rights.

Article 17(2) of the Treaty on European Union states that: “The Union equally respects the status under national law of philosophical and non-confessional organisations.”

4.2 The Preamble to Council Directive 2000/78 explicitly refers to freedom of religion or belief.

“11. Discrimination based on religion or belief… may undermine the achievement of the objectives of the EC Treaty”; and “12. To this end, any direct or indirect discrimination based on religion or belief… as regards the areas covered by this Directive should be prohibited throughout the Community.”

4.3 Specifically, secularism is a philosophical conviction that must be recognised and respected.

The European Court recognises that the “supporters of secularism are able to lay claim to views attaining the “level of cogency, seriousness, cohesion and importance” required for them to be considered “convictions” within the meaning of Articles 9 of the Convention and 2 of Protocol No. 1.

More precisely, their views must be regarded as “philosophical convictions”, within the meaning of the second sentence of Article 2 of Protocol No. 1, given that they are worthy of “respect ‘in a democratic society’”, are not incompatible with human dignity and do not conflict with the fundamental right of the child to education.”

4.4 Also, freedom of thought, conscience and religion is as precious an asset to atheists as it is to religious people. The European Court has stated that:

“31. 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, skeptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.”

4.5 Finally, excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief. The European Court has stated that:

“Furthermore, while it is important to ensure that representatives of religious communities are allowed to give input and advice, this should not be taken to the extreme of giving them too much decision-making power at the cost of abdicating state responsibility. The European Court of Human Rights has made it clear that excessive involvement of religious authorities from one community in decisions that affect the rights of those belonging to another community may itself amount to a violation of the right to freedom of religion or belief.”

Atheist Ireland