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National Secular Society

Challenging Religious Privilege

NSS response: Equality & Human Rights White Paper May 2004

13th August 2004

FAIRNESS FOR ALL: A NEW COMMISSION FOR EQUALITYAND HUMAN RIGHTS (CEHR)
(Dept for Trade and Industry White Paper Cm 6185 published May 2004)

RESPONSE FROM THE NATIONAL SECULAR SOCIETY 6 AUGUST 2004

Section A Details about the national secular society

Section B Executive summary

Section C Major issues arising from the white paper

Section D Responses to the questions posed in the White Paper

Section E A Supplementary issue

SECTION A WHAT IS THE NATIONAL SECULAR SOCIETY? (NSS)

The NSS is the most prominent organisation campaigning for a secular society which gives equality of rights and opportunities for everyone, including the non-religious. The Society consequently also fights for the elimination of religious privilege.

It was founded in 1866, since when it has championed many human rights that are taken for granted today. Founder Charles Bradlaugh MP campaigned for the right to affirm rather than swear in parliament and the courts. Annie Besant and Bradlaugh brought material on birth control available to working class people, despite widespread condemnation by the establishment. The Society has continued to support human rights, for example women’s rights and gay rights. In recent years, the Society has made numerous submissions to Government ministers, departments and agencies, of which one of the most relevant to this has been on the Employment Equality (Religion or Belief) Regulations 2003 and Employment Equality (Sexual Orientation) Regulations 2003.The principal concerns we expressed concerned excessive religious exemptions and we were successful in bringing about some modest limitation to these through prompting an amendment to be moved in the EU Parliament to the wording of the relevant EU Directive. Our petitions to the UK Government on this subject went largely unheeded, however, and we are now lodging a formal complaint with the EU Commission against the UK Government’s transposition of the relevant EU Directive. This complaint is being sponsored by a group of MEPs from the three major parties.

We have given both written and oral evidence to the Wakeham Commission on the Reform of the House of Lords and to Select Committees of both Houses of Parliament. Our submissions and oral evidence to the (Commons) Education and Skills Select Committee and (Lords) Committee on Religious Offences were both on human rights related issues. The latter largely focussed on how to frame Incitement to Religious Hatred legislation and on whether the Common Law Offence of Blasphemous Libel should be abolished.

The Society’s Honorary Associates include Human rights campaigners Sir Ludovic Kennedy, Claire Rayner, Joan Smith and Polly Toynbee; Profs. Peter Atkins and Richard Dawkins; Dr A C Grayling and Dr David Starkey - as well as a number of prominent parliamentarians from both UK houses and the European parliament.

Statistical context

Non-religious people form a significant and growing minority which should not be ignored Those promoting religious interests are generally keen to emphasise the latest Census findings that 77% of Britons identified themselves as religious of which 72% identified as Christians. Even these figures included 23% who did not identify themselves as religious and of which 15% specifically identified themselves as non-religious - three times the proportion of all the minority religions taken together.

Yet if the question posed had been to what religion do you belong it is instructive that the 15-23% would probably have risen to somewhere in the region of 41%. This was the number that has stated that they do not belong to any religion and polls regularly show that around 30% of people do not believe in God.

Christian belief and observance is set to continue to decline. Only 7% of the population attends church on an average Sunday - and this percentage has been in decline for 60 years[British Social Attitudes survey 2001: Belonging to a religion, Great Britain, 2001 - "‘do you regard yourself as belonging to any particular religion?’ None = 41%"]. This average age of churchgoers is much older than that of the population, and Sunday schools, once a key element of British life have all but disappeared. In a survey of nearly 30,000 British school children, 58% identified themselves as agnostic or atheist. A study conducted by professors of the University of Aberdeen shows that similar statistics for Scotland do indeed mean that people are systematically abandoning the churches, rather than that as the population becomes older, the more religious it becomes.

Perhaps even more significant is that only 20% consider religion important to their identity[UK Religious Trends 2003-2004 published by Christian Research], although this figure is understandably higher among ethnic minorities. The purpose of these statistics is not to suggest that other minorities are too small to be respected, but to demonstrate that the non-religious are a significant and growing minority and should not be ignored.

(Further independent statistics or sources will be provided available on request.)

SECTION B EXECUTIVE SUMMARY

(References in parentheses are to the more detailed discourse on the issue. A list of the recommendations follows on from the end of the summary.)

We welcome the commitment to the new single equality body and the announcement that the Government will introduce a Single Equality Act. A summary of our submission follows, together with a list of the recommendations that also appear within our submission in Section C in the relevant context.

The NSS is the most prominent organisation campaigning for a secular society and has been fighting for human rights issues since its formation in 1866. (A.1-A.5)

The non-religious are between 15% and around 40% of the population, depending on the criteria used to define them. As a group they are growing. (A.6-A.9)

We remain unconvinced that a "pecking order" will be avoided with the proposals as set out. It is essential for the new strands to have the same public duty requirement as existing strands. It is essential that rules for resolution of conflicts between and even within the strands are established at the outset. (C.1-C.4)

Without complete political independence (the new body must be controlled by Parliament and independently governed and funded) and broadly equivalent funding to existing strands, any expectation of equality with other strands can be little more than lip service. Furthermore, the existing strands have a head start with much more power, influence and resources. (C.5-C.7)

The religious and non-religious often have diametrically opposite perspectives and needs; therefore they cannot be equitably share a combined representative. (1.1-1.5)

Religion is a major source of oppression of women and sexual minorities and the CEHR needs to address this to protect the vulnerable; to promote freedom from religion alongside protecting freedom to practise religion or belief. (1.6-1.12) The non-religious are not generally recognised as an oppressed minority and when they point out instances of discrimination against them, their calls are more often than not ignored, often because of concerns not to upset religious organisations. (1.13-1.14)

The belief strand cannot reasonably be represented by the religious. The NSS perspective, while having much in common with that of the British Humanist Association is sufficiently different to justify separate or alternate representation (1.15-1.21)

(1.22-1.24) We endorse the proposal for a single equality body and therefore have major concerns about a body such as the CRE dissuading the Government from forming a single body and/or charging an existing body with taking responsibility for one or more strands, even if only temporarily.

The NSS considers that combined cases should continue to be supported if the discrimination element falls away. (2.1) Local and regional activities will run increased risk of an uneven application of the principles of equality and human rights arising from geographical anomalies, or "clusters" of identities. (3.1, 3.2 and 5.1) We have major concerns about equal access and even proselytisation from the transfer of public welfare services to religious organisations. (4. all)

We conclude with a cautionary plea on freedom of expression. (8. all)

Recommendations (All numbers are preceded in the main text by "Rec") We welcome the announcement that the Government will promote a Single Equality Act but recommend that this specifically include the necessary "levelling-up" for the new strands so that parity may be maintained between the strands.

We recommend that public sector duties with legally binding force should be introduced over the all remaining strands, which would help create a climate more conducive to those strands being treated with equal priority. Unless all strands are able to rely on such a positive public sector duty, they will not be able to promote the delivery of genuine equality and human rights without fear of an unspoken hierarchy.

While supporting all measures to prevent the establishment or retention of a pecking order, we recommend that further practical approaches must be developed at the outset in anticipation of the need to resolve the inevitable conflicts that will arise and which do not seem to us to have been given sufficient attention in the White Paper. We particularly recommend the use of human rights principles as a way to balance rights (Para. 3.8). We recommend that the principles and process required to resolve conflicts (e.g. between religious/cultural versus non-religious and other minority viewpoints) should be set out in advance, together with the occasions on which their use is recommended (or even required) in a Code of Practice. Such a formalisation of approach would serve to increase objectivity in a process that might otherwise undermine the coalescing of the disparate interests and the creation of a single voice.

We recommend that the consideration of "the effectiveness and adequacy" of the legislation be judged relative to the CEHR’s overall aims rather than whether the legislation has delivered within the narrower terms of its own conception. This would be in the same spirit of broad outlook envisaged at para.3.35, which we welcome.

We recommend that the CEHR be directly answerable to Parliament and that Parliament should set the budget for the new Commission.

We recommend that governance be on a model other than the non-departmental public body model discussed in the 11th Report of the Joint Committee on Human Rights. We would prefer a governance model similar to that overseeing the National Audit Office or the Electoral Commission, for example.

We recommend the provision of a secretariat and the establishment of dedicated resources, similar to those enjoyed by the CRE, for the representatives of the new strands in the steering group to and the shadow CEHR. Without this there can be no realistic chance that the desired new culture will be embedded.

We recommend that transition Commissioners for the new strands be created and granted the same powers, matching those for the established strands (para.11.19) thereby avoiding the reality or the perception of a pecking order. Even the appointment of such transition Commissioners, however, would not entirely allay our concerns that in practice the traditional strands, and larger, better-resourced members of the new strands may well be "over-represented" on the Board, and that this could lead to an unhealthy dominance of some sectional interests rather than a genuine across the board approach.

We recommend that a board membership category be created of associateship, observer status or sponsorship. This would be intended for those whose experience has hitherto been with equality/human rights issues as they relate to smaller or poorly funded minorities in order that they may develop relevant expertise and at the same time contribute from their own experience. We would hope that the Board would include at least one specifically non-religious member, both for practical reasons and symbolic ones.

We finally recommend that the imposition of safeguards to prevent the dilution of the CEHR’s commitment to fairness to all, whether nationally, regionally or locally, and that this be done with great care and after having consulted widely. Equality and Human Rights must have no boundaries within the remit of the CEHR.

We recommend that the CEHR’s remit should seek to protect the vulnerable by extending formal monitoring to include any systematic restriction on physical or psychological freedom of women, girls and sexual minorities. The CEHR’s functions, internal and transitional arrangements need to be organised in such a way as to ensure protection is maximised in these areas, and to ensure that these human rights issues cannot be evaded, downgraded in priority or obstructed because of pressure from religious or cultural interests.

In addition to monitoring the freedom to exercise religion, we recommend that the CEHR also formally undertake the duty to monitor abuses of freedom from religion, specifically:

a. The right to change religion freely (and without harassment)

b. The right similarly to reject any religion or belief.

We recommend that if religious organisations are consulted (whether formally or informally) by the CEHR, the perspectives of the NSS and other humanist/secular organisations need to be equally canvassed.

We endorse the need for a single equality body and recommend that the guiding principle for all its actions should be firmly rooted in human rights and that belief - with its conflicting needs - be acknowledged as a separate strand from religion. The internal arrangements, functions and transitional provisions must be set up to reflect this.

Where strands are represented in any process or function within the CEHR, whether formally or informally, whether at the outset or subsequently, we recommend that the Belief strand should consist of more than one representative because of the large number of non-religious and the differing agendas of the NSS and the British Humanist Association. A less satisfactory alternative might be an ‘alternate/rotating’ representation where the organisations take it in turns to attend meetings.

We therefore recommend that, where a religious view is invited on any issue relating directly to the "religion or belief" strand, the NSS should be automatically invited to offer a secular viewpoint on identical terms to substantially reduce the possibility of any oversight. In short, we seek the status of parity with religious groups within our assigned strand.

We recommend that the CEHR should take steps to monitor periodically whether local or regional problems of balance have been overcome and that if it is found that specific local arrangements are unsatisfactory then active steps are taken to rectify such imbalance, and if these steps prove unsatisfactory then consideration be given to withdraw CEHR support from specific activities which appear not to be functioning appropriately.

We recommend that the CEHR should work to ensure that any proselytisation is proscribed in public services in a similar way to which the Civil Service is required to operate without partiality to any political party.

We recommend that the CEHR should develop a strategy to ensure that there is no dilution of standards (whether in strands protected by specific public sector duties or not) in the event that private enterprises/non-state bodies assume the role of the public sector and that, where religious organisations assume public sector functions, they must be subject to no less rigorous a regime than the public sector itself.

We recommend that the CEHR should be charged with protecting the rights of the non-religious and other minorities to equal access to employment and services specifically where the service provider has transferred from the public sector to the voluntary/religious sector. (We also ask that the protection should include addressing the concerns raised in Para 4.2 above.)

We recommend that the CEHR should seek a role in the relevant tender process for the award of public sector contracts, and in the formulation of such contracts, to ensure that these comply with the CEHR’s vision. For this and other reasons, the NSS approves the expectation that the CEHR Board will include those with experience of public sector delivery and management (para.7.40).

We recommend particularly that the CEHR should take on a specific formal objective to work strongly towards introduction of a mandatory public sector duty to promote equality regardless of religion or belief (see also our comments in Section C 6 The Avoidance of a "Pecking-Order"). We consider the imposition of such a duty would accelerate the creation of a broad culture change to embed equality and human rights values within society. We recommend that the remit of the CEHR should include a formal duty to enforce, monitor and report on this proposed objective.

SECTION C MAJOR ISSUES ARISING FROM THE WHITE PAPER

(Recommendations have been emboldened and are numbered consecutively, Rec 1 etc.)

The Avoidance of a "Pecking Order" - and Especially How Conflicts Are Resolved The NSS wholeheartedly supports the creation of a new culture in which all are treated equally. Similarly, we value the existence and application of human rights as part of a legal culture in its own right and not just when those rights support or validate the interests of our members. We recognise that there will inevitably be conflicts of rights. Along with other organisations, we are concerned that every possible measure is taken to prevent a de facto "pecking order" of rights. Such a disparity would weaken, or even erode, the Government’s aim of a new culture. We agree with the remarks of the Secretary for Trade and Industry, Patricia Hewitt, at the launch of the White Paper when she said that if such a pecking order arose, she would consider the CEHR to have failed. Rec 1. We welcome the announcement that the Government will promote a Single Equality Act but recommend that this specifically include the necessary "levelling-up" for the new strands so that parity may be maintained between the strands.

Rec 2. We recommend that public sector duties with legally binding force should be introduced over the all remaining strands, which would help create a climate more conducive to those strands being treated with equal priority. Unless all strands are able to rely on such a positive public sector duty, they will not be able to promote the delivery of genuine equality and human rights without fear of an unspoken hierarchy.

Rec 3. While supporting all measures to prevent the establishment or retention of a pecking order, we recommend that further practical approaches must be developed at the outset in anticipation of the need to resolve the inevitable conflicts that will arise and which do not seem to us to have been given sufficient attention in the White Paper. We particularly recommend the use of human rights principles as a way to balance rights (Para. 3.8).

We recommend that the principles and process required to resolve conflicts (e.g. between religious/cultural versus non-religious and other minority viewpoints) should be set out in advance, together with the occasions on which their use is recommended (or even required) in a Code of Practice. Such a formalisation of approach would serve to increase objectivity in a process that might otherwise undermine the coalescing of the disparate interests and the creation of a single voice.

Nonetheless, the approaches outlined in the above recommendation have their limitations. The NSS has been particularly concerned to observe over the last year that where there has been any conflict between the rights of the religious and the non-religious (or, indeed, society at large), the former have generally succeeded in gaining greater access to policy makers and in persuading them to accede to their demands - often to the detriment of the rights of the non-religious or sexual minorities.

In addition, in the context of anti-discrimination legislation, the growing strength of the religious lobby has led, in our view, to a dilution of the aim of achieving equality of opportunity; we refer to various submissions the Society made to the Government in respect of The Employment Equality (Religion and Belief) Regulations 2003 (copies available on request). The vision of the White Paper that "human rights are based on an idea of fairness for all, establishing basic principles of dignity, respect and protection for everyone" (para.1.11) will be undermined if any individual identity or sectional interest is afforded this type of disproportionate consideration or is granted disproportionate exemptions. It is salutary to note that the Church of England Archbishops’ Council was able to dictate almost verbatim the wording of contentious religious exemptions to the Regulations. The new wording somehow circumvented comment by other consultees, and - despite this - the DTI did not even consider advising those representing those groups potentially adversely affected.

We do not consider that the Employment Regulations as they stand sufficiently protect the rights of those with no religion or belief. We are, therefore, pleased to note that one of the CEHR’s functions will be to keep legislation under review.

Rec 4. We recommend that the consideration of "the effectiveness and adequacy" of the legislation be judged relative to the CEHR’s overall aims rather than whether the legislation has delivered within the narrower terms of its own conception. This would be in the same spirit of broad outlook envisaged at para.3.35, which we welcome.

The Governance of the CEHR and adequacy of resources

(Paragraphs C.5 - C.7 need to be read in conjunction with the recommendations below.)

In order to deliver its vision, we consider that the CEHR must be independent of government and we therefore support models of governance which seek to maximise independence. It is our view that the non-departmental public body model proposed in Chapter 5 does not present the best means of achieving this. (Recommendation 18 suggests a way forward.) We welcome the fact that the Board will not be made up of separate champions for each strand and believe this will improve its ability to deliver equality. We also welcome the appointment of those with direct experience in the relevant areas. We warn, however, that these approaches will not in themselves prevent the voices of minorities such as those we represent being "drowned out".

Our current impression is that adequate resources have not been allocated in particular to the religion and belief strand. If a new strand is to operate on equal footing to the established strands there must be an even-handed approach to funding. Even if the CEHR’s founding document makes a commitment that all strands must operate on an equal footing, this vital ideal stands no chance of being realised unless the funding is on an even-handed basis. We will not be alone in scrutinising the financial proposals in this area and will regard their adequacy as a litmus test of the sincerity of the commitment to the religion and belief strand. This is particularly important in light of the unsubstantiated rumour that the CRE may wish to assume responsibility for part (but not all) of the religion and belief strand. We are disturbed by reports that the CRE rejects a single equality body.

Rec 5. We recommend that the CEHR be directly answerable to Parliament and that Parliament should set the budget for the new Commission.

Rec 6. We recommend that governance be on a model other than the non-departmental public body model discussed in the 11th Report of the Joint Committee on Human Rights. We would prefer a governance model similar to that overseeing the National Audit Office or the Electoral Commission, for example.

Rec 7. We recommend the provision of a secretariat and the establishment of dedicated resources, similar to those enjoyed by the CRE, for the representatives of the new strands in the steering group to and the shadow CEHR. Without this there can be no realistic chance that the desired new culture will be embedded.

Rec 8. We recommend that transition Commissioners for the new strands be created and granted the same powers, matching those for the established strands (para.11.19) thereby avoiding the reality or the perception of a pecking order. Even the appointment of such transition Commissioners, however, would not entirely allay our concerns that in practice the traditional strands, and larger, better-resourced members of the new strands may well be "over-represented" on the Board, and that this could lead to an unhealthy dominance of some sectional interests rather than a genuine across the board approach.

Rec 9. We recommend that a board membership category be created of associateship, observer status or sponsorship. This would be intended for those whose experience has hitherto been with equality/human rights issues as they relate to smaller or poorly funded minorities in order that they may develop relevant expertise and at the same time contribute from their own experience.We would hope that the Board would include at least one specifically non-religious member, both for practical reasons and symbolic ones.

Rec 10. We finally recommend the imposition of safeguards to prevent the dilution of the CEHR’s commitment to fairness to all, whether nationally, regionally or locally, and that this be done with great care and after having consulted widely. Equality and Human Rights must have no boundaries within the remit of the CEHR.

SECTION D RESPONSES TO THE QUESTIONS POSED IN THE WHITE PAPER

(Paragraphs are numbered within a series starting with the question number.)

Question 1: How can the CEHR ensure that all stakeholders have meaningful opportunities to shape its priorities and how it works?

A factor that we are convinced will be key to the CEHR’s success will be its ability to engage effectively with a very wide range of stakeholders and ensure that the full range of opinions and expertise are consulted, not only between the different strands, but also within those strands. We are therefore pleased to note the commitment at para.10.8 to the Government working closely with representatives of the new strand organisations and others with an interest in the new employment regulations in the period leading to the establishment of the CEHR so that their needs can be clearly identified and support can be provided.

Unique Tensions Within Religion and Belief Strand

The implementation of a policy of full inclusivity is of considerable importance to the NSS, and to non-religious people in general, since the tensions within the "religion and belief" equality strand are of a different order compared with other strands. Although the separate equality strands will always contain members with diverse (and no doubt on occasion, mutually exclusive) viewpoints, such tensions are especially exacerbated in the "religion or belief" strand. This strand is unique, as far as we can see, in lumping together those with fundamentally opposing beliefs, and therefore often those with conflicting standpoints. For example, secularists who seek to minimise the influence of religion in public life, are contained within the same strand as religions/religious bodies which seek retain the influence of religion in public life, and often where possible, to expand it - despite a dramatic decline in religious observance over the last 70 years.

This polarity is absent or much less evident in other strands where groups who have differences with others in their strand will normally share at least a "lowest common denominator" on which they would agree over a range of issues. In addition, those who suffer discrimination (whether absolute or relative) because of their lack of belief are represented in the same strand as those who have achieved exemptions (for example over employment of lesbians and gay men working for the purposes of an organised religion) from the uniform application of anti-discrimination measures i.e. the very exemptions from discrimination which non-believers have opposed, and from which they may suffer. The often radically differing perspectives of believers and non-believers stem from a different philosophical approach potentially even greater than their differences over religion. Believers tend to accept the absolute authority of what they regard as sacred texts and be guided by them. Non-believers, on the other hand will disagree that such texts should take precedence over conclusions drawn from empirical evidence. Such tensions are not confined to religious matters. Other areas in which this polarity is most noticeable concern attitudes to sexuality and, to an extent, to equality for women.

Particular difficulties for women and sexual minorities

We are aware that transsexuals and those represented by the Gay and Lesbian Humanist Association and the Lesbian and Gay Christian Movement also feel that they will not be adequately represented by bodies dealing solely with separate strands, or a single body where only the major strands are represented. They, like us, single out religious bodies and those citing religious views as a major if not the major source of opposition or oppression.

Religious strictures and cultural practices, sometimes inextricably entwined but given additional power or sanction when enforced by religious bodies, continue to subjugate women, particularly women who are religious. They can even lead to loss of life, as in so-called honour killings. They can also result: in women and girls suffering untreatable physical harm (as in Female Genital Mutilation); in women being constrained from going about their lawful activities; in women being denied the right to marry whomsoever they wish; in women being prevented from working at whatever job they wish; and in girls being denied the breadth of educational opportunities available to boys.

Sexual minorities, including homosexuals and transsexuals, also suffer persecution which infringes their human rights at the hands of religious groups and of those basing their persecution on religious/cultural norms.

It might be argued that those representing other relevant strands, such as women, would be fighting these and similar issues, and to a severely limited extent this will be the case. Nevertheless our experience, including our observations at the Equality Coalition, is that many shy away from acknowledging such encroachments on human rights where these stem from religious and cultural influences. Members of such strands who are religious themselves are quite likely to regard any such recognition as traitorous to their religion and that to oppose such encroachments as all but unthinkable. Those oppressed are likely to be under intolerable pressure to conform to religious or cultural norms, and will probably only be able to challenge such human rights abuses with support.

It was significant that during a lengthy debate on such matters at the Equality Coalition that the issue of religion being a significant source of oppression was not broached during our discussions until the NSS Executive Director raised it. It seemed that it needed such a catalyst before several people from other strands (some of whom were liberal religious people themselves) felt empowered to acknowledge this problem. Despite the Executive Director’s suggestion having been made in neutral terms, it evoked the most hostile responses of the entire debate and this was predictably made by those supporting religious interests and was clearly intended to silence dissenting views.

Rec 11. We recommend that the CEHR’s remit should seek to protect the vulnerable by extending formal monitoring to include any systematic restriction on physical or psychological freedom of women, girls and sexual minorities. The CEHR’s functions, internal and transitional arrangements need to be organised in such a way as to ensure protection is maximised in these areas, and to ensure that these human rights issues cannot be evaded, downgraded in priority or obstructed because of pressure from religious or cultural interests.

Rec 12. In addition to monitoring the freedom to exercise religion, we recommend that the CEHR also formally undertake the duty to monitor abuses of freedom from religion, specifically:

a. The right to change religion freely (and without harassment)

b. The right similarly to reject any religion or belief.

The above recommendations are not an exclusive list of situations where monitoring would be appropriate and others may arise in the future. Examples where monitoring might also be undertaken include: (i) pressurised attendance at religious services in the armed services; (ii) religious employees regularly being allowed significant paid time off work to attend religious devotions, while the non-religious receive no time off and are also required to work harder to cover the work left by those absent; and (iii) religious employees being granted holiday time (particularly if paid) to observe religious festivals in addition to that of other employees or receiving automatic priority in being allocated particular dates for their holidays.

Those who are religious tend to have formed groups of adherents, often with a hierarchical structure. Non-religious people, however, tend not to so organise, yet can collectively suffer actual or relative discrimination/disadvantage relative to the former. Consequently, their voice can be muted and overlooked in the face of highly organised and vocal religious groups. (See also the local implication in the response to Question 3.) The CEHR needs to find mechanisms to compensate for the imbalances of power highlighted above.

Difficulties Faced by the Non-Religious in Being Heard

A telling example of how the non-religious voice is being stifled arose just as this submission was being finalised. Following advice from its human rights lawyers that most Local Education Authorities were routinely disregarding the Human Rights Act over school transport, the Society formally asked the Government to issue guidelines to local authorities to treat families of non-believers in an even-handed way relative to believers over school transport, but the Government declined to do so. At the beginning of August 2004, however, the Joint [Parliamentary] Committee on Human Rights called on the government on human rights grounds to issue clear guidelines to local authorities to treat families of non-believers in an even-handed way relative to believers over school transport subsidies, despite what they described as the Government’s "reluctance" to do so. This vindication of our stance only came about coincidentally, though. It occurred solely because the Committee had a duty to scrutinise the publication of a School Transport Bill. We do not feel confident that a religion strand representative would have championed such a complaint on our behalf.

A further example of a cause of complaint concerning the non-religious, for which we would not have expected support from a religion strand representative, concerns the exclusion of non-believers from contributing to the BBC’s Thought for the Day slot broadcast during the Today programme. We were also able to demonstrate a lack of objectivity in the appeal process, and the BBC did not even offer any alternative slot. This complaint, which we regard as a human rights one, was first made to the BBC over 30 years ago and has still not been resolved equitably despite a number of complaints at several levels.

Implications for CEHR and Predecessor / Transitional Bodies

The foregoing points illustrate why no single voice can ever hope to speak representatively for this one strand. This disadvantaged position is exacerbated by the overwhelming success religions groups have achieved in gaining the ear of the Government (as evidenced by the Home Office Report Working Together: Co-operation Between Government and Faith Communities).

Rec 13. We recommend that if religious organisations are consulted (whether formally or informally) by the CEHR, the perspectives of the NSS and other humanist/secular organisations need to be equally canvassed. Failure to do so would be potentially disadvantageous not only to the many non-religious but also runs counter to the stated wish (Para. 2.1) that the CEHR should engage with a very wide range of stakeholders using an approach that is inclusive. We recognise that the British Humanist Association (BHA) currently represent the Belief strand in the Taskforce. While there is a great deal of agreement and co-operation between our two organisations, there are nevertheless substantial differences of emphasis, approach and sometimes of opinion within the spectrum of issues likely to be considered by the CEHR.

Clearly there is a limit to the number of representatives that can be represented as strands at the "top table", but we draw attention to the large and growing number of non-religious people, for whom some headline statistics are given at the start of Section C in C(ii).

We note the Government’s intention at para.10.7 to "continue to engage those who have an interest in the - religion or belief regulations to evaluate the support available for ensuring compliance and good practice, to identify key issues affecting the embedding of the legislation, and to advise on unmet needs". We are anxious that a non-religious/secular perspective is heard in these debates. Unfortunately, however, we rarely tend to be directly consulted, while those who oppose our interests, it seems invariably have been. We are working towards closing this gap, but are not under any illusion that parity is within sight.

The composition of the Task Force is a case in point. We recognise that there will always be competing interests, and that, for practical reasons, some will inevitably not be represented in the Task Force’s composition. We also recognise the existence of opportunities for non-participants to feed in their views. But given the significance of the Task Force in the formation of priorities for the CEHR, we regard the NSS’s particular voice not being represented at this level as a significant stumbling block.

We note that there is to be a continuing role for the Task Force in advising on priorities for the new body (Para. 2.3). This gives rises to concern about representation.

We consider it essential that the NSS is included so that a significant section of opinion can be heard on the important issue of shaping the CEHR’s priorities. This should also apply to the Transition Group (para.11.5). These formative stages in the creation of the CEHR (before the strands might be said to have coalesced) are especially important.

Rec 14. We endorse the need for a single equality body and recommend that the primary emphasis should be placed firmly on human rights and that belief - with its conflicting needs - be acknowledged as a separate strand from religion. The internal arrangements, functions and transitional provisions must be set up to reflect this.

Rec 15. Where strands are represented in any process or function within the CEHR, whether formally or informally, whether at the outset or subsequently, we recommend that the Belief strand should consist of more than one representative because of the large number of non-religious and the differing agendas of the NSS and the BHA. A less satisfactory alternative might be an ‘alternate/rotating’ representation where the organisations take it in turns to attend meetings.

Rec 16. We therefore recommend that, where a religious view is invited on any issue relating directly to the "religion or belief" strand, the NSS should be automatically invited to offer a secular viewpoint on identical terms to substantially reduce the possibility of any oversight. In short, we seek the status of parity with religious groups within our assigned strand.

A Potential Pitfall

It follows from the above, however, that the religion strand should not be solely assigned to any other body (including the CRE) as we believe that it would find it difficult to reach out and represent all the different and conflicting strands of opinion. We do not think that the CRE’s past experiences suggest in any way that it would be immune from these objections. We also worry that the very different characteristics of religion - especially the power bases through which it operates - would give any such conflation of race and religion disproportionate influence that would overpower other voices. We would also oppose this temporary arrangement as we believe it would tend to become established and difficult to dismantle. We are disturbed by reports that the CRE rejects a single equality body, presumably leaving the way open for their own present role to be retained or even expanded. We hope that the Government will resist any sectional interests seeking to discourage the establishment a single equality body as we are convinced that equality for all stands the best chance of being facilitated by a single body.

Question 2: We would welcome views on whether the CEHR should be able to continue support for cases which have drawn on both discrimination and human rights arguments, after the discrimination element of the case has fallen away. The NSS considers that combined cases should continue to be supported if the discrimination element falls away. We support the intervention of the CEHR in any non-discrimination case that would have wider implications for discrimination issues as a visible demonstration of the CEHR’s commitment to this area, and indeed to human rights.

Question 3: What other areas of activity should the CEHR support at local level to further its overall mission to promote good relations between different communities?

We note the intention that the CEHR will have a presence in each of the nine English regions. In so far as this is intended to ensure "efficient and effective delivery of the CEHR’s work" (para.8.3), we support it. We have profound concerns, however, that these well-intentioned activities will run increased risk of an uneven application of the principles of equality and human rights arising from geographical anomalies, or "clusters" of identities. Another concern is that religious groups - especially the more vocal or strident smaller local community ones - may hold views which do not reflect the CEHR’s approach of inclusivity, or may be headed by members of a hierarchy who are not representative of the communities for which they claim to speak.

A reference to such problems is made in the Home Office Report Working Together: Co-operation Between Government and Faith Communities, for example:

"Among more newly settled members of faith communities, poor command of English and culturally based self-effacement and deference to male family members have inhibited many women from being put forward to attend events and from influencing policy-making through the normal routes of voting, lobbying, writing to MPs and so on." Emphasis is given in the Report to the need to ensure that women, young and older people are drawn in, and, where consultation with religious groups is contemplated, consideration being given similarly to include secularist/humanist voices also.

Rec 17. We recommend that the CEHR should take steps to monitor periodically whether local or regional problems of balance have been overcome and that if it is found that specific local arrangements are unsatisfactory then active steps are taken to rectify such imbalance, and if these steps prove unsatisfactory then consideration be given to withdraw CEHR support from specific activities which appear not to be functioning appropriately.

Question 4: We would welcome comments on the strategies for working with individuals, businesses and the public sector that are set out in this chapter.

Ensuring equal access to the delivery of public sector functions is one of the most important routes to securing equal treatment for non-believers, and indeed for the population at large. The public sector duties outlined at paras.7.56-7.58, both those currently in existence and those to be introduced in the near future, play an important role in the promotion of equality. We share the concerns of a number of stakeholders that these safeguards are likely to be diluted if public sector functions are transferred to private enterprises. The Joint Committee on Human Rights in its 11th Report commented (at para.33) "As we discussed in our recent report on the meaning of "public authority" under The Human Rights Act, increasingly the services on which people rely for the protection of their rights at moments when they are most vulnerable are delivered by private or voluntary sector bodies".

The NSS is particularly concerned about the implications, for both Human Rights and Equality, of churches and other religious organisations seeking to extend their activities into the provision of education, welfare and prison services, to take a few examples, generally with the benefit of public funds. For some religious organisations, the motives may also include direct or indirect proselytisation, which we consider should be proscribed in such circumstances. There are other concerns too including equal access. We are aware of cases in the US where churches charged with distributing charity collected through federal programs have only given out food parcels to those agreeing to pray or attend religious services. The potential users of such services, funds or facilities may also be dissuaded from taking them up, if to so do might expose them to unwelcome cultural or religious pressure. We also have concerns about opportunities for the misuse of power such activities open up to those who by virtue of running them also, in effect, become gatekeepers to public funds/facilities/functions.

Rec 18. We recommend that the CEHR should work to ensure that any proselytisation is proscribed in public services in a similar way to which the Civil Service is required to operate without partiality to any political party.

Rec 19. We recommend that the CEHR should develop a strategy to ensure that there is no dilution of standards (whether in strands protected by specific public sector duties or not) in the event that private enterprises/non-state bodies assume the role of the public sector and that, where religious organisations assume public sector functions, they must be subject to no less rigorous a regime than the public sector itself.

Rec 20. We recommend that the CEHR should be charged with protecting the rights of the non-religious and other minorities to equal access to employment and services specifically where the service provider has transferred from the public sector to the voluntary/religious sector. (We also ask that the protection should include addressing the concerns raised in Para 4.2 above.)

Rec 21. We recommend that the CEHR should seek a role in the relevant tender process for the award of public sector contracts, and in the formulation of such contracts, to ensure that these comply with the CEHR’s vision. For this and other reasons, the NSS approves the expectation that the CEHR Board will include those with experience of public sector delivery and management (para.7.40).

Rec 22. We recommend particularly that the CEHR should take on a specific formal objective to work strongly towards introduction of a mandatory public sector duty to promote equality regardless of religion or belief (see also our comments in Section C 6 The Avoidance of a "Pecking-Order"). We consider the imposition of such a duty would accelerate the creation of a broad culture change to embed equality and human rights values within society. We recommend that the remit of the CEHR should include a formal duty to enforce, monitor and report on this proposed objective.

Question 5: What other activities should the CEHR carry out at regional level? Is the mixed approach - contracts, partnerships and co-location - an appropriate way to develop the CEHR’s regional presence? We accept the strategic need for the CEHR to develop a regional network.

We refer to our response to Question 3. Our comments about local and regional arrangements are identical.

SECTION E A SUPPLEMENTARY ISSUE

The Vital Need to Protect Freedom of Expression From Further Erosion The Society is being concerned to the point of alarm at creeping restrictions on freedom of expression (including self-censorship) in deference to religious and cultural considerations and pressure.

Although Salman Rushdie had not, as far as we are aware, broken any law in connection with the publication of his book The Satanic Verses, the opprobrium seemed to be directed almost exclusively against him, rather than against those calling for him to be murdered. We are not aware of any action being taken by the authorities against those inciting violence, or worse. While we accept that charges being laid may have provoked violence, the message sent by the authorities’ apparent inaction over these matters sent what many will have interpreted as a worrying signal that threats of violence can be overlooked where to take action might offend cultural sensitivities.

Since then, there has been a marked and growing reluctance to criticise religion (especially minority religions), or their practices. Politicians and journalists who do so are singled out for criticism and receive hate mail as a result. The draconian religious aggravated sentences introduced with Section 39 of the Anti-Terrorism Crime and Security Act 2001 have also had a chilling effect on freedom of expression, especially the increased maximum prison term to seven years for the relatively minor Public Order Act offence of insulting behaviour.

The Society has a long history of seeking to protect freedom of expression as one of the most precious of our liberties. There are already the limitations over inciting violent behaviour or racial hatred. It is in our opinion far better for feelings to be expressed, however vile or hurtful (subject to these important legal constraints), because then they can be exposed to robust criticism and condemnation.

In addition to the important idealist arguments, we should say that if the means are given to allow freedom of expression to be strangled, the extremists will grasp them and then those who raise legitimate criticisms and concerns will be silenced by extremists. The extremists will prevail, and the cost will be immeasurable.

While not a specific strand, we urge the CEHR to bear in mind constantly the need to protect freedom of expression.