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.

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Find the EU renegotiation demands dull? Me too – but they are important

It's an old trick: smother anything in enough jargon and you can avoid being held accountable for it.

I don’t know about you, but I found the details of Britain’s European Union renegotiation demands quite hard to read. Literally. My eye kept gliding past them, in an endless quest for something more interesting in the paragraph ahead. It was as if the word “subsidiarity” had been smeared in grease. I haven’t felt tedium quite like this since I read The Lord of the Rings and found I slid straight past anything written in italics, reasoning that it was probably another interminable Elvish poem. (“The wind was in his flowing hair/The foam about him shone;/Afar they saw him strong and fair/Go riding like a swan.”)

Anyone who writes about politics encounters this; I call it Subclause Syndrome. Smother anything in enough jargon, whirr enough footnotes into the air, and you have a very effective shield for protecting yourself from accountability – better even than gutting the Freedom of Information laws, although the government seems quite keen on that, too. No wonder so much of our political conversation ends up being about personality: if we can’t hope to master all the technicalities, the next best thing is to trust the person to whom we have delegated that job.

Anyway, after 15 cups of coffee, three ice-bucket challenges and a bottle of poppers I borrowed from a Tory MP, I finally made it through. I didn’t feel much more enlightened, though, because there were notable omissions – no mention, thankfully, of rolling back employment protections – and elsewhere there was a touching faith in the power of adding “language” to official documents.

One thing did stand out, however. For months, we have been told that it is a terrible problem that migrants from Europe are sending child benefit to their families back home. In future, the amount that can be claimed will start at zero and it will reach full whack only after four years of working in Britain. Even better, to reduce the alleged “pull factor” of our generous in-work benefits regime, the child benefit rate will be paid on a ratio calculated according to average wages in the home country.

What a waste of time. At the moment, only £30m in child benefit is sent out of the country each year: quite a large sum if you’re doing a whip round for a retirement gift for a colleague, but basically a rounding error in the Department for Work and Pensions budget.

Only 20,000 workers, and 34,000 children, are involved. And yet, apparently, this makes it worth introducing 28 different rates of child benefit to be administered by the DWP. We are given to understand that Iain Duncan Smith thinks this is barmy – and this is a man optimistic enough about his department’s computer systems to predict in 2013 that 4.46 million people would be claiming Universal Credit by now*.

David Cameron’s renegotiation package was comprised exclusively of what Doctor Who fans call handwavium – a magic substance with no obvious physical attributes, which nonetheless helpfully advances the plot. In this case, the renegotiation covers up the fact that the Prime Minister always wanted to argue to stay in Europe, but needed a handy fig leaf to do so.

Brace yourself for a sentence you might not read again in the New Statesman, but this makes me feel sorry for Chris Grayling. He and other Outers in the cabinet have to wait at least two weeks for Cameron to get the demands signed off; all the while, Cameron can subtly make the case for staying in Europe, while they are bound to keep quiet because of collective responsibility.

When that stricture lifts, the high-ranking Eurosceptics will at last be free to make the case they have been sitting on for years. I have three strong beliefs about what will happen next. First, that everyone confidently predicting a paralysing civil war in the Tory ranks is doing so more in hope than expectation. Some on the left feel that if Labour is going to be divided over Trident, it is only fair that the Tories be split down the middle, too. They forget that power, and patronage, are strong solvents: there has already been much muttering about low-level blackmail from the high command, with MPs warned about the dire influence of disloyalty on their career prospects.

Second, the Europe campaign will feature large doses of both sides solemnly advising the other that they need to make “a positive case”. This will be roundly ignored. The Remain team will run a fear campaign based on job losses, access to the single market and “losing our seat at the table”; Leave will run a fear campaign based on the steady advance of whatever collective noun for migrants sounds just the right side of racist. (Current favourite: “hordes”.)

Third, the number of Britons making a decision based on a complete understanding of the renegotiation, and the future terms of our membership, will be vanishingly small. It is simply impossible to read about subsidiarity for more than an hour without lapsing into a coma.

Yet, funnily enough, this isn’t necessarily a bad thing. Just as the absurd complexity of policy frees us to talk instead about character, so the onset of Subclause Syndrome in the EU debate will allow us to ask ourselves a more profound, defining question: what kind of country do we want Britain to be? Polling suggests that very few of us see ourselves as “European” rather than Scottish, or British, but are we a country that feels open and looks outwards, or one that thinks this is the best it’s going to get, and we need to protect what we have? That’s more vital than any subclause. l

* For those of you keeping score at home, Universal Credit is now allegedly going to be implemented by 2021. Incidentally, George Osborne has recently discovered that it’s a great source of handwavium; tax credit cuts have been postponed because UC will render such huge savings that they aren’t needed.

Helen Lewis is deputy editor of the New Statesman. She has presented BBC Radio 4’s Week in Westminster and is a regular panellist on BBC1’s Sunday Politics.

This article first appeared in the 11 February 2016 issue of the New Statesman, The legacy of Europe's worst battle