For God and equality

Is the Equality and Human Rights Commission in total disarray?

"Our business is defending the believer." Thus spoke Trevor Phillips, chair of the Equality and Human Rights Commission, in an interview with the Daily Telegraph back in June. It was a good soundbite, at least a memorable one, but it has now come back to haunt him.

At the time, Phillips' remarks (he also suggested that religious identity was "an essential part of this society" and "an essential element of being a fulfilled human being") raised fears among secularists. But he also had some tough words for politically motivated Christian activists whose "old time religion" meant that they "want to have a fight and they choose sexual orientation as the ground to fight it on." So the Evangelicals weren't too impressed either. No one was quite sure whether Phillips had been announcing a change of direction, to give more emphasis to religion in the whole equality pick-n-mix, or merely trying to rebut suspicions that his organisation was part of "a fashionable mocking and knocking brigade." Perhaps he wasn't entirely sure himself.

A couple of weeks later, the EHRC announced - via a press release - that it intended to intervene in four cases of religious discrimination which had been rejected by British courts but were going to be heard in Strasbourg. This time, the message was much less ambiguous. "Judges have interpreted the law too narrowly in religion or belief discrimination claims," it began. It went on to accuse the courts of giving "insufficient" protection to freedom of religion or belief and having "set the bar too high for someone to prove that they have been discriminated against because of their religion." They had "created a body of confusing and contradictory case law". The Commission intended to "propose the idea of 'reasonable accommodations' that will help employers and others manage how they allow people to manifest their religion or belief."

Christian campaign groups were predictably delighted. The Evangelical Alliance even took the credit for selling the idea ofreasonable accommodation during its meetings with EHRC staff. Secular and gay rights organisations were (equally predictably) appalled, the latter mainly because two of the cases that the EHRC seemed to be supporting involved people who wished to manifest their religious faith by discriminating against homosexuals. Islington registrar Lillian Ladele wanted the right to avoid officiating at civil partnership ceremonies. Relate counsellor Gary Gary McFarlane didn't want to work with gay couples.

There was a huge row. Andrew Copson of the British Humanist Association accused the commission of lending its support to "a deliberate agenda to stir up support for a re-Christianisation of our public spaces as a reaction to feelings of persecution." Behind the scenes at the commission, it is rumoured, feelings were running high. Publicly, nothing further was said.

It now appears that the EHRC has come to the conclusion that the courts' judgement in the Ladele and Macfarlane cases was right all along. An emergency consultation document which they've just put out in advance of the Strasbourg hearing seeking views announces the organisation's intention to oppose the appeals in those two cases while still supporting dissident cross-wearers Nadia Eweida and Shirley Chaplin.

Whatever the organisation is saying now, this wasn't the impression it gave at the time. Pink News was given to understand that the ECHR's proposal "could involve local councils allowing Christian registrars to swap shifts to avoid having to officiate civil partnerships, rather than beginning disciplinary action which then leads to 'costly, complex legal proceedings'". While the public press release wasn't quite so specific, it did feature the quoted words about the cost of litigation. It also implied that it viewed the four cases as involving essentially the same principle.

The intervention of one commissioner in particular seems to have been decisive. Angela Mason, formerly with Stonewall herself, gave a somewhat outspoken interview to the Pink Paper in which she downplayed the press release: "I don't think it fully represented the opinion of the commission." And she announced (and the consultation document confirms) that the commission "has already decided not to put forward 'reasonable adjustment' arguments if we do continue with our intervention."

Instead, the commission is seeking views on whether the concept of reasonable accommodation "would have any practical useful application." This, after several weeks of mixed messages and in a rushed consultation with a deadline only three weeks hence, suggests that the ECHR is in almost total disarray on the issue. The latest press release tries to reflect the blame onto the appeal process itself, complaining that the court has "only given us a few weeks in which to prepare our submissions" and that the principle of reasonable accommodation "needs more careful consideration."

The consultation document devotes most of its space to setting out the arguments in favour of a principle that the commission states that it nolonger intends to put before the court. At the same time, the September 6th deadline is designed to ensure that interested parties' views can be taken into account before the commission makes its final submissions. This makes no sense. It is explicable only as evidence of unresolved internal disputes.

The EHRC was always an unwieldy beast, dedicated to an official fiction that all rights are equal and that there is no necessary conflict between them. A report for Civitas earlier this month called for the commission to be abolished, suggesting that it "contributes very little to meaningful equality in Britain today" and costs the taxpayer far too much money. This latest saga certainly points to a troubled organisation, uncertain of its role, vainly trying to placate contradictory points of view, and bearing the impression of the last pressure group which sat on it.

Belief, disbelief and beyond belief
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Will Euroscepticism prove an unbeatable advantage in the Conservative leadership race?

Conservative members who are eager for Brexit are still searching for a heavyweight champion - and they could yet inherit the earth.

Put your money on Liam Fox? The former Defence Secretary has been given a boost by the news that ConservativeHome’s rolling survey of party members preferences for the next Conservative leader. Jeremy Wilson at BusinessInsider and James Millar at the Sunday Post have both tipped Fox for the top job.

Are they right? The expectation among Conservative MPs is that there will be several candidates from the Tory right: Dominic Raab, Priti Patel and potentially Owen Paterson could all be candidates, while Boris Johnson, in the words of one: “rides both horses – is he the candidate of the left, of the right, or both?”

MPs will whittle down the field of candidates to a top two, who will then be voted on by the membership.  (As Graham Brady, chair of the 1922 Committee, notes in his interview with my colleague George Eaton, Conservative MPs could choose to offer a wider field if they so desired, but would be unlikely to surrender more power to party activists.)

The extreme likelihood is that that contest will be between two candidates: George Osborne and not-George Osborne.  “We know that the Chancellor has a bye to the final,” one minister observes, “But once you’re in the final – well, then it’s anyone’s game.”

Could “not-George Osborne” be Liam Fox? Well, the difficulty, as one MP observes, is we don’t really know what the Conservative leadership election is about:

“We don’t even know what the questions are to which the candidates will attempt to present themselves as the answer. Usually, that question would be: who can win us the election? But now that Labour have Corbyn, that question is taken care of.”

So what’s the question that MPs will be asking? We simply don’t know – and it may be that they come to a very different conclusion to their members, just as in 2001, when Ken Clarke won among MPs – before being defeated in a landslide by Conservative activists.

Much depends not only on the outcome of the European referendum, but also on its conduct. If the contest is particularly bruising, it may be that MPs are looking for a candidate who will “heal and settle”, in the words of one. That would disadvantage Fox, who will likely be a combative presence in the European referendum, and could benefit Boris Johnson, who, as one MP put it, “rides both horses” and will be less intimately linked with the referendum and its outcome than Osborne.

But equally, it could be that Euroscepticism proves to be a less powerful card than we currently expect. Ignoring the not inconsiderable organisational hurdles that have to be cleared to beat Theresa May, Boris Johnson, and potentially any or all of the “next generation” of Sajid Javid, Nicky Morgan or Stephen Crabb, we simply don’t know what the reaction of Conservative members to the In-Out referendum will be.

Firstly, there’s a non-trivial possibility that Leave could still win, despite its difficulties at centre-forward. The incentive to “reward” an Outer will be smaller. But if Britain votes to Remain – and if that vote is seen by Conservative members as the result of “dirty tricks” by the Conservative leadership – it could be that many members, far from sticking around for another three to four years to vote in the election, simply decide to leave. The last time that Cameron went against the dearest instincts of many of his party grassroots, the result was victory for the Prime Minister – and an activist base that, as the result of defections to Ukip and cancelled membership fees, is more socially liberal and more sympathetic to Cameron than it was before. Don’t forget that, for all the worry about “entryism” in the Labour leadership, it was “exitism” – of Labour members who supported David Miliband and liked the New Labour years  - that shifted that party towards Jeremy Corbyn.

It could be that if – as Brady predicts in this week’s New Statesman – the final two is an Inner and an Outer, the Eurosceptic candidate finds that the members who might have backed them are simply no longer around.

It comes back to the biggest known unknown in the race to succeed Cameron: Conservative members. For the first time in British political history, a Prime Minister will be chosen, not by MPs with an electoral mandate of their own or by voters at a general election but by an entirelyself-selecting group: party members. And we simply don't know enough about what they feel - yet. 

Stephen Bush is editor of the Staggers, the New Statesman’s political blog. He usually writes about politics.