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Published online by Cambridge University Press: 11 September 2020
During the COVID-19 lockdown the initial British Government mantra of ‘Stay home. Protect the NHS. Save lives’, the ritualistic weekly public clapping for the National Health Service (NHS) and the overall tone of the media coverage led several commentators to raise the question of whether the NHS had become a religion. This question is legally significant. The question of whether the lockdown breached Article 9 has already been the subject of litigation. R (on the application of Hussain) v Secretary of State for Health [2020] EWHC 1392 (Admin) concerned the then prohibition on private prayer in places of worship. Swift J refused an application for interim relief to allow Friday prayers at Barkerend Road Mosque. Lockdown did infringe the claimant's Article 9 rights but this interference was only with one aspect of religious observance and the interference had a finite duration. The legitimate difference of opinion between the claimant and the British Board of Scholars and Imams was relevant to the question of justification. There was no real prospect that the claimant would succeed at obtaining a permanent injunction at trial because the pandemic presented ‘truly exceptional circumstances’ that meant that the interference would be justified on grounds of public health. Swift J was satisfied that there was a sufficiently arguable case to grant permission to apply for judicial review but he did not order that the claim be expedited. In Dolan, Monks and AB v Secretary of State for Health [2020] EWHC 1786 (Admin), an application of a judicial review of the lockdown regulations and schools closure was refused. However, in relation to Article 9, Lewis J adjourned consideration of this discrete issue because regulations had just been made that allowed communal worship which may have made the argument academic. English law provides the right to manifest religion or belief under the Human Rights Act 1998 and the right not to be discriminated against on grounds of religion or belief in relation to employment and the provision of goods and services under the Equality Act 2010. This raises the point: during the lifting of lockdown, when authorities require people to go back to their workplace or send their children to school, could individuals who refuse say they were legally entitled to decline on the basis that such a requirement breached their belief in protecting the NHS?
I am grateful to Frank Cranmer, Dr Sharon Thompson and Dr Caroline Roberts for their comments on an earlier draft of this comment.
2 See N Spencer, ‘Clapping for the NHS, our new religion’, THEOS, 27 March 2020, <https://www.theosthinktank.co.uk/comment/2020/03/27/clapping-for-the-nhs-our-new-religion>; L Woodhead, ‘The NHS, our national religion’, Religion Media Centre, 1 April 2020, <https://religionmediacentre.org.uk/news-comment/the-nhs-our-national-religion-2/>. Such an analogy is not new and was famously used by Nigel Lawson in his memoirs. The British Medical Journal featured an editorial on the topic in 1999 (Neuberger, J, ‘The NHS as a theological institution’ (1999) 319 BMJ 1588–1589CrossRefGoogle ScholarPubMed) and the NHS had a starring role in the opening ceremony of the Olympics in 2012. A study into the cultural history of the NHS by Warwick University is exploring how people believe in the NHS: see <https://warwick.ac.uk/fac/arts/history/chm/research/current/nhshistory>. The analogy has been used by commentators both to praise and to criticise the NHS: P Toynbee, ‘The NHS is our religion: it's the only thing that saves it from the Tories’, Guardian, 3 July 2018, <https://amp.theguardian.com/commentisfree/2018/jul/03/nhs-religion-tories-health-service>; cf B Spencer, ‘The NHS is the closest thing we have to a religion – and that's why it must be privatised’, Independent, 7 February 2017, <https://www.independent.co.uk/voices/nhs-crisis-jeremy-hunt-health-service-religion-privatise-to-save-it-a7567056.html>. Perhaps most notably, the then Health Secretary Jeremy Hunt is reported to have said that the treatment of the NHS as a ‘national religion’ meant that anyone who questioned its orthodoxy could be left ‘facing the Spanish inquisition’: see L Donnelly, ‘NS reforms are “like the Reformation” of the church says Jeremy Hunt’, Daily Telegraph, 16 July 2015, <https://www.telegraph.co.uk/news/nhs/11744633/NHS-reforms-are-like-the-Reformation-of-the-church-says-Jeremy-Hunt.html>. All URLs accessed 29 June 2020.
3 See further Sandberg, R, ‘Clarifying the definition of religion under English law: the need for a universal definition’, (2018) 20 Ecclesiastical Law Journal 132–157CrossRefGoogle Scholar.
4 Mr G Conisbee v Crossley Farms Ltd & Ors [2019] ET 3335357/2018. See Cranmer, F and Sandberg, R, ‘A critique of the decision in Conisbee that vegetarianism is not a belief’, (2020) 22 Ecc LJ 36–48Google Scholar.
5 Casamitjana v The League of Cruel Sports [2020] ET 3331129/2018. Compare the earlier decision in Alexander v Farmtastic Valley Ltd and others [2011] ET 2513832/10, in which a belief in the treatment of animals which included vegetarianism and aspects of Buddhism was held to be a protected belief.
6 Forstater v CGD Europe & Ors [2019] ET 2200909/2019.
7 Mackereth v The Department for Work and Pensions & Ors [2019] ET 1304602/2018.
8 On which see Hambler, A, ‘Beliefs unworthy of respect in a democratic society: a view from the employment tribunal’, (2020) 22 Ecc LJ 234–241Google Scholar.
9 McEleny v Ministry of Defence (Scotland: Disability Discrimination, Religion or Belief Discrimination) [2018] UKET 4105347/2017.
10 Maistry v The BBC [2011] ET 1213142/2010.
11 [2014] EWCA Civ 1116.
12 It is worth noting at the outset that employment tribunal decisions are not binding on each other. Much depends upon the evidence adduced.
13 Grainger PLC v Nicholson [2009] UKEAT 0219/09/ZT.
14 Equality Act 2010, s 10.
15 Hazar, Hazar and Acik v Turkey (1991) 72 D&R 200; X v Austria (1981) 26 D&R 89.
16 There is no case on point of whether a belief in the healthcare system would be protected as a belief, but in Nyyssönen v Finland [1998] App no 30406/96 (ECHR 15 January 1998) the European Commission of Human Rights held that ‘alternative medicine as a manifestation of medical philosophy falls within the ambit of the right to freedom of thought and conscience’. The claim failed because no evidence had been submitted that could lead to the conclusion that he was prevented from manifesting his belief.
17 Grainger at para 24.
18 Available at <http://www.equalityhumanrights.com/sites/default/files/employercode.pdf>, accessed 29 June 2020.
19 Forstater at para 51.
20 An exception is Conisbee, where counsel put forward additional tests but the only additional test that the tribunal referenced in its decision was that ‘the belief must have a similar status or cogency to religious beliefs’ (para 43). This is questionable, given that the word ‘similar’ has been removed from the statutory definition of belief under the Equality Act 2010: see the discussion in Cranmer and Sandberg, ‘Critique of the decision in Conisbee’.
21 Eg Forstater at para 52, citing Harron v Chief Constable of Dorset Police [2016] IRLR 481, EAT at para 34.
22 Conisbee at para 38.
23 Casamitjana at para 33.
24 R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15 at para 22.
25 Forstater at para 53.
26 Casamitjana at para 33.
27 Streatfield v London Philharmonic Orchestra Ltd [2012] 2390772/2011 at para 38.
28 Maistry at para 8. It was also confirmed (para 16) that the extent to which the claimiant had raised the question of belief during capability or grievance proceedings, though relevant to the quesiton of liability, did not affect the question of whether the belief was genuine unless it could be inferred that the failure to mention it demonstrated that it was not a genuine belief at all.
29 McClintock v Department of Constitutional Affairs [2007] UKEAT/0223/07/CEA.
30 Ibid at para 54.
31 Farrell v South Yorkshire Police Authority [2011] ET 2803805/2010 at para 6.
32 Forstater at para 54. The point does not seem to be discussed in the judgment in Mackereth.
33 Conisbee at para 39. The reference to ‘an opinion based on some real, or perceived logic’ comes from McClintock at para 45 but this does not create a distinction, since protected beliefs too will presumably be based on a real or perceived logic.
34 Casamitjana at para 34.
35 Grainger at para 28.
36 Hashman v Milton Park (Dorset) Ltd [2011] ET 3105555/2009 at para 55.
37 Maistry at para 17.
38 McEleny at para 32.
39 Forstater at para 82.
40 Grainger at para 27.
41 McEleny at para 33.
42 Ibid at para 17.
43 Conisbee at para 40.
44 Casamitjana at para 35.
45 Maistry at para 18.
46 Ibid at para 9.
47 Ibid at para 18.
48 Williamson at para 22.
49 Harron v Chief Constable of Dorset Police [2016] UKEAT/0234/15/DA at para 33.
50 Ibid at para 34.
51 Ibid at para 37.
52 Lisk v Shield Guardian Co Ltd & Others [2011] ET 3300873/2011.
53 Mackereth at paras 195–196.
54 Conisbee at para 41.
55 P Edge, ‘Vegetarianism as a protected characteristic: another view on Conisbee’, Law & Religion UK, 21 September 2019, <https://www.lawandreligionuk.com/2019/09/23/vegetarianism-as-a-protected-characteristic-another-view-on-conisbee/>, accessed 29 June 2020.
56 See also Casamitjana at para 37, in which it was held that ethical veganism met this test because ‘a community within businesses and restaurants clearly exists ‘which adheres to this ethical principle’.
57 Farrell at para 6.
58 McEleny at paras 18 and 34.
59 Forstater at para 83.
60 An example of such a claim can be found in the US case of United States v Kuch 288 F Supp 439 (1968).
61 Maistry at para 19. It was held that the claimant's belief was not a political belief and, even if it was, this did not mean that it was not protected. There is a significant and contradictory case law on the issue of whether political beliefs are protected under the Equality Act: see Sandberg, R, ‘Are political beliefs religious now?’, (2015) 175 Law and Justice 180–197Google Scholar.
62 Grainger at para 24.
63 Williamson at para 77.
64 Conisbee at para 42; Casamitjana at para 38; McEleny at para 35; Maistry at para 17.
65 Williamson at para 23.
66 Grainger at para 28.
67 Mackereth at para 197, though in a ‘footnote’ to the judgment it was stressed that: ‘It is important given the public interest in this case that we make clear this case did not concern whether Dr Mackereth is a Christian and if that qualifies for protection under the Equality Act. That was never in dispute’ (para 261).
68 Forstater at para 84.
69 He noted that, ironically, ‘Judge Tayler took something of an “absolutist” view of the issue himself’: Hambler, ‘Beliefs unworthy of respect’, p 239.
70 Ibid, p 240.
71 Maistry at para 2.