Wednesday, 24 October 2012

Equality law: the Scouts’ exception

From the Telegraph:
Schoolboy ‘banned from Scouts for being an atheist’

Schoolboy George Pratt had attended his local Scout group for ten months, and was expecting to invest in the group along with his friends.

But, after being required to swear the traditional promise, he found himself unable to join as he does not believe in God.

George, 11, said he was “very disappointed” in the decision, calling it “very unfair” and claiming he feels left out from experiences and trips his friends are attending.

His father Nick Pratt, 45, has accused the Scout movement of being “narrow minded” and “intolerant”, saying his son is being “excluded because he doesn’t believe”.

To become a full member of the 1st Midsomer Norton Group in Somerset, which meets in a hall opposite his home, George must take the Scout Promise.

This reads: “On my honour, I promise that I will do my best, To do my duty to God and to the Queen, To help other people, And to keep the Scout Law.”

Different versions of the oath are available for different faiths, such as the use of ‘Allah’ to replace ‘God’ for Muslims.

Read the full story at the Telegraph. Another account is at the British Humanist Society website.

When I first read this story, I thought that the demand by the Scout group to swear an oath referencing God must breach the law in some way.

Reading guidance from the Charity Commission on the Equality Act 2010 reinforced this thought.

According to the guidance, the Equality Act 2010 makes it unlawful to discriminate against anyone in the provision of services because of a protected characteristic, one of which is religion or belief.

The charities’ exception allows a charity to limit its benefits to people who share a protected characteristic only if the charity’s governing document only allows people who share a protected characteristic to benefit, and the restriction can be justified either by Test A: Tackling disadvantage, or Test B: Achievement of a legitimate aim. The guidance gives examples to help understand what this means.

From this it would seem that demanding that individuals swear a religious oath in order to access a service would be in breach of the act unless the organisation could show that it was A: tackling a disadvantage suffered by religious people, or B: excluding non-believers in pursuit of some legitimate aim. I’ll try to get back to the legitimate aim argument in a later post, but for now let it suffice that I don’t think it could be justified in this case.

So is the 1st Midsomer Norton Group in breach of the Equality Act 2010? Well, I think they would have been had the original draft of the bill been enacted, but Scout and Guide groups successfully lobbied for an amendment to the Equality Act 2006, and it remains in the 2010 Act as Sections 193(5) and 193(6):
(5) It is not a contravention of this Act for a charity to require members, or persons wishing to become members, to make a statement which asserts or implies membership or acceptance of a religion or belief; and for this purpose restricting the access by members to a benefit, facility or service to those who make such a statement is to be treated as imposing such a requirement.

(6) Subsection (5) applies only if—

(a) the charity, or an organisation of which it is part, first imposed such a requirement before 18 May 2005, and

(b) the charity or organisation has not ceased since that date to impose such a requirement.
By that means the Scout Promise escaped the Equality Act, but being ‘not a contravention of this Act’ doesn’t mean the promise might not be in breach of some other law. How about the Human Rights Act 1998 which incorporates the European Convention on Human Rights into UK law? This is the part of the Convention that’s relevant:
Article 9 – Freedom of thought, conscience and religion

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
While one could hardly argue that the Scout Promise is a shining example of the spirit of Article 9, it’s not clear that it’s in breach of it either. If one likens the Scouts to a broad church that goes camping, then one could argue that they’re exercising freedom of thought in community. As they are a private organisation not imposing their will on those outside the organisation, they can argue that they’re not limiting non-members’ freedom of belief.

And yet there’s more to it, even if it falls outside the scope of the ECHR. If an organisation for the promotion of a religious doctrine becomes the dominant provider of certain services, then it can impinge on individuals’ ability to preserve freedom of belief while playing a full part in their community, on their ability to be true to themselves while sharing experiences with their friends that are largely secular, such as going caving. And the Scouts present themselves as more camping and caving than God. Ten months this boy had been going to Scouts before God came up. I’m beginning to think that this is not so much different to other sorts of clubs that used to exclude people on the basis of belief.

There’s another international convention to consider, the UN Convention on the Rights of the Child. It includes the following:

Article 2

2. States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.

Article 14

1. States Parties shall respect the right of the child to freedom of thought, conscience and religion.

2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.

3. Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others.

Article 31

1. States Parties recognize the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts.

2. States Parties shall respect and promote the right of the child to participate fully in cultural and artistic life and shall encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity.

In responding to the current controversy, Simon Carter, assistant director of media relations for the Scout Association, said “young people will not be refused membership solely because of their parents’ beliefs or non-beliefs,” a phrase that in emphasising parents’ beliefs rather than children’s seemed tailored to satisfy Article 2 (2), though perhaps it’s more likely that it was drafted with the Equality Act in view.

On Article 14, it’s not clear to me that the Scout Promise is incompatible with Article 14 taken just by itself, for the same reason that I doubted earlier whether the ECHR would apply, but if you read Article 14 together with Article 31, particularly 31 (2), then I think it becomes clear that in adopting the Scouts and Guides amendment, Parliament failed to live up its their duty under the UN Convention on the Rights of the Child.

This is because in a case like George Pratt’s the Scout Promise prevents him from exercising his rights under Article 14 while also exercising his rights under Article 31. The Promise means he can’t both exercise freedom of belief and participate fully in cultural and artistic life, because in his town and amongst his friends the Scouts are a dominant provider of facilities for cultural and artistic activity. There don’t seem to be many other alternatives.

Under Article 4, responsibility for enacting measures to implement the rights described in the UNCRC lies with the State, that is with Government and Parliament.

Unlike the ECHR the UNCRC has not been incorporated into UK law, though the UK is a signatory. There were repeated but unsuccessful attempts in the House of Lords in 2005 to amend the then Equality Bill to include a reference to the Convention on the Rights of the Child.

As the UNCRC hasn’t been incorporated into UK law, it can’t be enforced by UK courts, though they may refer to it in interpreting UK law. Interpreting does not mean creating or overturning law however. Even with the ECHR which is incorporated into UK law via the Human Rights Act, UK courts can’t change or overturn existing legislation where it’s in conflict with the ECHR, but at most issue a declaration under Section 4 of the Act that the relevant statutory provision is incompatible with the rights set out in the Convention.

A declaration of incompatibility leaves the law in force and passes the problem back to Parliament. It doesn’t seem clear that even this option is available to a UK court when it comes to the UNCRC.

UPDATE: The Scout Association’s anti-bullying policy cites the UNCRC.

Time to incorporate the UN Convention on the Rights of the Child into UK Law.

Time for the Scout Association to stop religious discrimination against children in its non-religious activities.


jams o donnell said...

Even if the law is on the Scout Association's side it comes across as looks stupid and petty to turn away a kid.

kellie said...

Agreed Jams. And I find it exraordinary that the government of the day went along with this business of making an amendment tailored especially for the Scouts and Guides, just so they could avoid offering the option of a non-religious Promise.

As the Promise is open to anyone believing in any sort of God, even if someone does believe in some sort of God, it doesn’t follow that they regard themselves as owing the same duties to God as the authors of the Promise had in mind. They may believe they owe no duty at all, or they may believe they owe a duty to their God that the authors would have found objectionable.

Whether or not one is a royalist, at least the part about the Queen has a clearer meaning.

The Scouts would be better served with a promise that unifies its members under Scout Law, rather than having them swear a Promise that can mean something quite different for each person swearing.