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|BAILII case number:  UKEAT 0219_09_0311
|Appeal No. UKEAT/0219/09
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
|At the Tribunal
|On 7 October 2009
|Judgment delivered on 3 November 2009
THE HONOURABLE MR JUSTICE BURTON
|GRAINGER PLC & OTHERS
|MR T NICHOLSON
Transcript of Proceedings
© Copyright 2009
|For the Appellant
|MR JOHN BOWERS
(One of Her Majesty's Counsel)
Messrs Grange Wintringham Solicitors
St Mary's Chambers
West St. St Mary's Gate
North East Lincolnshire
|For the Respondent
|MISS DINAH ROSE
(One of Her Majesty's Counsel)
MR IVAN HARE
Messrs Bindmans LLP Solicitors
275 Gray's Inn Road
London WC1X 8QB`
RELIGION OR BELIEF DISCRIMINATION
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations. The belief must be of a similar cogency or status to a religious belief, the ECHR jurisprudence is directly material and the limitations on the concept and extent of a philosophical belief can be derived from that, without the need to place any additional limitation on the nature or source of the belief.
THE HONOURABLE MR JUSTICE BURTON
- This is an appeal by the Respondent, Grainger plc, against the decision of Regional Employment Judge Sneath on 18 March 2009, by reasons sent to the parties on 1 April 2009, after a pre-hearing review, that the Claimant was entitled to pursue a claim under the Employment Equality (Religion or Belief) Regulations 2003 ("the 2003 Regulations"). The issue was whether the belief assertedly held by the Claimant, Mr Nicholson, was capable of being a belief for the purposes of the 2003 Regulations. At the Tribunal, the Claimant was in person and the Respondent was represented by Junior Counsel. Before me, the fullest possible consideration of the point has been given by Leading Counsel now instructed on either side, John Bowers QC for the Appellant and Dinah Rose QC, with Ivan Hare, for the Respondent employee.
- The facts do not matter, this being a preliminary issue, but it should simply be said that the Respondent was employed by the Appellants until 31 July 2008. The Appellants claim that the Respondent's employment was terminated on grounds of redundancy: the Respondent claims that his dismissal was unfair and that he was discriminated against contrary to the 2003 Regulations, because of his asserted philosophical belief about climate change and the environment.
- The Employment Judge recorded, in paragraph 5 of his judgment, the content of a witness statement by the Claimant, which read as follows:
"2. I have a strongly held philosophical belief about climate change and the environment. I believe we must urgently cut carbon emissions to avoid catastrophic climate change.
3. It is not merely an opinion but a philosophical belief which affects how I live my life including my choice of home, how I travel, what I buy, what I eat and drink, what I do with my waste and my hopes and my fears. For example, I no longer travel by airplane, I have eco-renovated my home, I try to buy local produce, I have reduced my consumption of meat, I compost my food waste, I encourage others to reduce their carbon emissions and I fear very much for the future of the human race, given the failure to reduce carbon emissions on a global scale."
- The Employment Judge reached no conclusion about this statement, and recorded at paragraph 6 that:
"The Claimant has not been cross-examined on that evidence, but it is doubtful whether such cross-examination would be permitted, since it is not the function of the Tribunal to examine the beliefs of Claimants appearing before it. Instead it is the function of the Tribunal to analyse those beliefs to see whether they engage relevant legislation."
- That seemed to me, and Counsel did not dissent when I raised the matter, not to be correct. It seems to me an implicit cross-reference to the words of Lord Nicholls in R (Williamson) v Secretary of State for Education and Employment  2 AC 246 at para 22, when Lord Nicholls said: "When the genuineness of a claimant's professed belief is an issue in the proceedings, the court will enquire into and decide this issue as a question of fact. This is a limited enquiry. The court is concerned to ensure an assertion of religious belief is made in good faith … But, emphatically, it is for not the court to embark on an enquiry into the asserted belief and judge its 'validity' by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual."
- Where, as here, the assertion is of a philosophical belief, it is plain that the limiting words of Lord Nicholls do not, or at any rate, may not, apply. To establish a religious belief, the claimant may only need to show that he is an adherent to a particular religion. To establish a philosophical belief, not least to establish, if such be necessary, all the underlying facts set out, or assumed, in the short extract from his evidence set out above, it is plain that cross-examination is likely to be needed. Indeed, paragraph 13 of the Employment Judge's judgment emphasises this point, when he says:
"I distinguished the Claimant's case from that of Mr McClintock [in McClintock v Department of Constitutional Affairs  IRLR 29] because the Claimant has settled views about climate change, and acts upon those views in the way in which he leads his life. In my judgment, his belief goes beyond mere opinion, such as might be held on some aspects of climate change, such as whether it is environmentally desirable to travel by air."
If such be necessary to be established, it was plainly not open to the Employment Judge to do so without cross-examination or inquiry.
- In those circumstances, it is agreed between the parties that, insofar as the Employment Judge may have purported to hold, as he seems to do in the last sentence of paragraph 10 of his judgment, that "the Claimant's beliefs are or amount to a philosophical belief within the 2003 Regulations", he was not entitled to go that far and that the limit of his decision, and of mine if I uphold it, is that (almost as set out in paragraph 1(a) of the judgment) "the asserted belief held by the Claimant upon which he bases his claim of discrimination is capable of being a belief for the purposes of" the 2003 Regulations.
- Paragraph 3 of the 2003 Regulations reads (in material part) as follows:
"(1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if … (a) on the grounds of the religion or belief of B … A treats B less favourably than he treats or would treat other persons."
- The interpretation section is what has been in issue in this appeal. Paragraph 2(1) reads as follows:
"(1) In these Regulations –
i. "religion" means any religion,
ii. "belief" means any religious or philosophical belief,
iii. a reference to religion includes a reference to lack of religion, and
iv. a reference to belief includes a reference to lack of belief."
- This definition resulted, so far as the crucial subparagraph in issue in these proceedings, paragraph 2(1)(b), is concerned, from an amendment inserted from 30 April 2007 by the Equality Act 2006, s77(1). Prior to the amendment, the word "similar" appeared before the words "philosophical belief". The circumstances which led to the amendment to delete that word were not in the event contentious. In "Religious Freedom, Religious Discrimination and the Workplace" (2008) by Lucy Vickers (at pp17ff), Ms Vickers suggests, by reference to a footnote (21), that "to be defined as 'similar' to religion was viewed as offensive to some humanists and atheists, and the definition was amended by the Equality Act 2006 to remove the term 'similar'." In support of this, Mr Bowers QC adduced, without objection, the relevant passage from Hansard relating to the then Equality Bill (13 July 2005 p1109) where Baroness Scotland, the Attorney General, is recorded as saying as follows, in relation to the deletion by amendment of the word "similar":
"… It was felt that the word 'similar' added nothing and was, therefore, redundant. This is because the term 'philosophical belief' will take its meaning form the context in which it appears; that is, as part of the legislation relating to discrimination on the grounds of religion or belief.
Given that context, philosophical beliefs must therefore always be of a similar nature to religious beliefs. It will be for the courts to decide what constitutes a belief for the purposes of [the Regulations] but case law suggests that any philosophical belief must attain a certain level of cogency, seriousness, cohesion and importance, must be worthy of respect in a democratic society and must not be incompatible with human dignity. Therefore an example of a belief that might meet this description is humanism, and examples of something that might not … would be support of a political party or a belief in the supreme nature of the Jedi Knights [a reference to a Camelot-style Order in the cult film Star Wars]. I hope that this provides some assurance on the change of the definitions of 'religion or belief' that we have adopted, and I hope that the noble Baroness will therefore feel content to withdraw the amendment" [which indeed ensues.]
- This passage helpfully encapsulates the three main issues between the parties on this appeal:
(i) How far, if at all, the belief said to qualify for protection under the Regulations is required to be similar to a religious belief?
(ii) What limits (if any) should be placed upon the words "philosophical belief"? Mr Bowers submits that there are or should be at least three limits:
(a) it must be a 'settled' belief, part of a system of beliefs; and/or
(b) it must be a philosophical belief and not a political belief, one based upon political opinions, such as, for example, fascism; and/or
(c) it must not be a scientific belief based upon conclusions drawn from science and resulting from research or the gathering of information.
(iii) Whether the authorities in relation to the European Convention on Human Rights ("ECHR"), Article 9 and Article 2 of Protocol 1 in particular, are of relevance, or indeed persuasive or conclusive in this field. This question arises in this context because the reference by the Attorney General to "case law" in the citation from Hansard above derives from the words of the judgment of the European Court of Human Rights in Campbell and Cosans v United Kingdom  4 EHRR 293, a case in which the complainants successfully alleged that the system of corporal punishment in Scottish state schools offended their philosophical convictions under Article 2 of Protocol 1 of the ECHR.
- Although the Regional Employment Judge set out the content of the Claimant's written statement, as above, he did not articulate the philosophical belief, which he concluded (arguably) fell for protection. I asked Ms Rose QC to articulate it for me, and she did so as follows:
"The philosophical belief is that mankind is heading towards catastrophic climate change and therefore we are all under a moral duty to lead our lives in a manner which mitigates or avoids this catastrophe for the benefit of future generations, and to persuade others to do the same."
- She submits that:
(i) there is a field (according to the Internet Encyclopaedia of Philosophy, an extract from which she produced) called Environmental Ethics, whose job is said to be to outline our moral obligations in the face of serious environmental concerns.
(ii) if an applicant had a similar belief that mankind is heading towards economic catastrophe, with the consequential asserted moral duty, then that too, she would submit, would be capable of amounting to a philosophical belief for the purposes of the Regulations.
- The central question appears to me to be the applicability and status of the ECHR authorities, commencing with the case of Campbell, relied upon by the Attorney General in Parliament. The relevant provisions of the ECHR are as follows:
(i) Article 9(1): "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." It can be seen that the belief in question is not necessarily a philosophical belief.
(ii) Article 14 (the general prohibition of discrimination) reads as follows:
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status."
This protects (but only by reference to some other Article to which this must be ancillary) discrimination on grounds of political or other opinion.
(iii) Article 2 of Protocol 1 protects the right to education, and provides that "in the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions."
- Mr Bowers submits that there is no requirement for the Regulations to be construed in accordance with the ECHR jurisprudence, and that the approach of the English courts in the interpretation of the Regulations passed by the UK Parliament pursuant to its obligations under Council Directive 2000/78/EC of 27 November 2000 ("the EC Framework Directive") to be construed independently, save only by reference to any jurisprudence of the European Court, of which there is none: he has referred to the book by Ms Vickers and also to another of her works "Religion and Belief Discrimination in Employment – the EU Law" (2006), but, although there is some reference to how some of the other Community members have legislated, including Austria, Germany and the Netherlands, there is nothing from which I feel able to draw any common or persuasive thread. Miss Rose however relies upon the Framework Directive:
(i) She points out that the Member States' obligation, by reference to Article 1, is as to the purpose of the Directive being the combating of discrimination "on the grounds of religion or belief". There is thus no limitation to any kind of belief, and thus, putting it at its lowest, no warrant for the UK legislature to limit the kind of belief to be protected.
(ii) She refers (as did the Employment Judge) to the fact that the ECHR is prayed in aid as a source in both Recitals (1 and 4). Mr Bowers notes that the original draft of Recital (1) was amended to include reference to the "constituted traditions common to the Member States", but that does not seem to me to do anything more than emphasise that the ECHR enshrines principles already familiar to e.g. the UK (see also Kremzow v Austria  3 CMLR 1289 at 1298 paragraph ), and certainly not to undermine the causal connection.
- Further, there are authorities in the Employment Appeal Tribunal, from which some assistance can be drawn, both decisions of Elias P. The first is McClintock supra. In this case, this Tribunal upheld a decision by the employment tribunal concluding that a JP member of the family panel was not entitled to protection, in circumstances where he declined to officiate in cases where he might have to decide whether same sex partners should adopt children. Although this was a challenge to the applicability of the Regulations, by reference to whether the claimant had a relevant belief, the case plainly turned on the finding of fact. The tribunal concluded that Mr McClintock's objection was not based on a philosophical belief. Elias P's conclusions are clearly set out at paragraph 45 of his judgment:
"As the tribunal in our view correctly observed, to constitute a belief there must be a religious or philosophical viewpoint in which one actually believes. It is not enough to have an opinion based on some real or perceived logic or based on information or lack of information available. Mr McClintock had not as a matter of principle rejected the possibility that single sex parents could ever be in a child's best interests; he felt that the evidence to support this view was unconvincing, but did not discount the possibility that further research might reconcile the conflict which he perceived to exist."
He did not therefore have, for example, a fixed homophobic belief.
- Elias P rejected the three arguments put forward by Counsel for Mr McClintock, by reference to his conclusion (paragraph 44) that "the tribunal found as a fact that Mr McClintock chose not to put his objections on the basis of any religious or philosophical belief." At the outset of setting out those arguments, Elias P recorded (in paragraph 41) that "the test for determining whether views can properly be considered to fall into the category of a philosophical belief is whether they have sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society: see Campbell and Cosans v United Kingdom … That was a decision under Article 9 of the ECHR, but [Counsel for the claimant] submits that it should equally inform the construction of the Regulations."
- Mr Bowers QC submits that, when Elias P came, in paragraph 44, to reject Counsel's three arguments, he was also rejecting that proposition. I do not agree. It is certainly the case that Elias P did not specifically adopt the proposition, but he did not reject it, and certainly gave no reason for doing so.
- The second authority is Eweida v British Airways plc  ICR 303, a case based wholly on religious belief (the British Airport stewardess wearing the cross). Elias P plainly cross-referred to the ECHR jurisprudence which, by now, included not only Campbell but Williamson, to which I have referred in paragraph 5 above. He plainly considered himself entitled, and indeed obliged, to draw on that jurisprudence in construing the Regulations (which runs further counter to Mr Bowers' construction of Elias P's own judgment in McClintock above). At paragraph 26, he referred to the speech of Lord Nicholls in Williamson, and concluded that "the protection afforded to those holding a religious or philosophical belief is a broad one. The belief can be intentionally personal and subjective." He noted that Williamson concerned Article 9 of the ECHR, which protected the right to freedom of religion rather than domestic law, but continued:
"27. However, by s3 of the Human Rights Act 1998, it is incumbent on domestic courts to construe domestic laws compatibly with Convention rights, and therefore the same (or at least no less favourable) approach must be adopted to the concept of religion and belief in the 2003 Regulations."
- Like Elias P, I have found such jurisprudence extremely helpful in this relatively uncharted territory. Allowance must be made for the fact that the Article 9 belief need not be a philosophical belief, though the Article 2 Protocol 1 conviction must be philosophical. Prior to Campbell, the only matters said to be of any potential relevance are two decisions of the European Commission of Human Rights. The first related to a complaint by Ms Pat Arrowsmith, Arrowsmith v United Kingdom  3 EHRR 218 in which the Commission was of the opinion (paragraph 69) that pacifism is a philosophy. In a subsequent decision of the Commission, H v United Kingdom (Application 18187/91) the Commission noted that the UK Government did not contest that veganism was capable of concerning belief within the meaning of Article 9 of the Convention. Though neither of those decisions, and certainly not the latter, which was based upon a concession, could be in any way binding, it is significant that, clearly by reference to them, Lord Walker was able to state in his speech in Williamson at paragraph 55 that "pacifism, vegetarianism and total abstinence from alcohol are uncontroversial examples of beliefs which would fall within Article 9 (of course pacifism or any comparable belief may be based on religious convictions, equally it may be based on ethical convictions which are not religious but humanist …)", and Arrowsmith is expressly approved in paragraph 24 by Lord Nicholls.
- But it is to the general principles as laid down in Campbell and in Williamson to which I am directed by Miss Rose. I have briefly described the facts of Campbell in paragraph 11 above. The central conclusions of the Court appear at paragraphs 36:
"The Government also contested the conclusion of the majority of the Commission that the applicants' views on the use of corporal punishment amounted to 'philosophical convictions', arguing, inter alia, that the expression did not extend to opinions on internal school administration, such as discipline, and that, if the majority were correct, there was no reason why objections to other methods of discipline, or simply to discipline in general, should not also amount to 'philosophical convictions'.
In its ordinary meaning the word 'convictions', taken on its own, is not synonymous with the words 'opinions' and 'ideas', such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is more akin to the term 'beliefs' (in the French text: 'convictions') appearing in Article 9 - which guarantees freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency, seriousness, cohesion and importance.
As regards the adjective 'philosophical', it is not capable of exhaustive definition, and little assistance as to its precise significance is to be gleaned from the travaux préparatoires. The Commission pointed out that the word 'philosophy' bears numerous meanings: it is used to allude to a fully-fledged system of thought or, rather loosely, to views on more or less trivial matters. The Courts agrees with the Commission that neither of these two extremes can be adopted for the purposes of interpreting Article 2: the former would too narrowly restrict the scope of a right that is guaranteed to all parents and the latter might result in the inclusion of matters of insufficient weight or substance.
Having regard to the Convention as a whole, including Article 17, the expression 'philosophical convictions' in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence.
The applicants' views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of such punishment entails. They are views which satisfy each of the various criteria listed above; it is this that distinguishes them from opinions that might be held on other methods of discipline or on discipline in general."
- As for Williamson, this too was a case relating to corporal punishment, although the parents in question there did not succeed, for reasons with which I do not need to trouble. Both Article 9 and Article 2 of the First Protocol were in play. Although there are relevant passages in the speeches of both Lord Walker (paragraphs 55 and 59-61) and Baroness Hale (paragraphs 75-76), the significant passage is in Lord Nicholls' speech. After dealing, in paragraph 22 (from which I have cited in paragraph 5 above), with the approach to the question of the genuineness of the belief, he continued as follows:
"23. Everyone, therefore, is entitled to hold whatever beliefs he wishes. But when questions of 'manifestation' arise, as they usually do in this type of case, a belief must satisfy some modest, objective minimum requirements. These threshold requirements are implicit in Article 9 of the European Convention and comparable guarantees in other human rights instruments. The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. The belief must also be coherent in the sense of being intelligible and capable of being understood. But, again, too much should not be demanded in this regard. Typically, religion involves belief in the supernatural. It is not always susceptible to lucid exposition or, still less, rational justification. The language used is often the language of allegory, symbol and metaphor. Depending on the subject matter, individuals cannot always be expected to express themselves with cogency or precision. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention …
24. This leaves on one side the difficult question of the criteria to be applied in deciding whether a belief is to be characterised as religious. This question will seldom, if ever, arise under the European Convention. It does not arise in the present case. In the present case it does not matter whether the claimants' beliefs regarding the corporal punishment of children are categorised as religious. Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract protection under Article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, for its manifestation to be protected by Article 9 a non-religious belief must relate to an aspect of human life or behaviour of comparable importance to that normally found with religious beliefs. Article 9 is apt, therefore, to include a belief such as pacifism: Arrowsmith …. The position is much the same with regard to the respect guaranteed to a parent's 'religious and philosophical convictions' under Article 2 of the First Protocol: see Campbell and Cosans …"
- Miss Rose submits that this is consistent with the words of Wilson J in the Supreme Court of Canada in Morgentaler v R  1 SCR 30 at paragraph 251, namely "in a free and democratic society 'freedom of conscience and religion' should be broadly construed to extend to conscientiously-held beliefs, whether grounded in religion or in a secular morality".
- I do not doubt at all that there must be some limit placed upon the definition of "philosophical belief" for the purpose of the Regulations, but before I turn to consider Mr Bowers' suggested such limitations, I shall endeavour to set out the limitations, or criteria, which are to be implied or introduced by reference to the jurisprudence set out above:
(i) The belief must be genuinely held.
(ii) It must be a belief and not, as in McClintock, an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others (paragraph 36 of Campbell and paragraph 23 of Williamson).
- Mr Bowers submits that, in order satisfactorily to place a limitation on the philosophical belief that is to be protected, and in order to be similar to a religious belief, it must form part of a system of beliefs, and not be one-off. He refers to dicta of the High Court of Australia in Church of the New Faith v Commissioner of Pay-Roll Tax (Victoria)  HCA 40, at paragraph 13, referring to philosophies which "… seek to explain, in terms of a broader reality, the existence of the universe, the meaning of human life and human destiny." He refers also to Vickers' exposition of how another Member State, the Netherlands, approaches the question of belief in its equivalent Regulations: "In the Netherlands the term levensovertuiging (philosophy of life) is used in order to place limitations on the type of belief that can be covered. The term 'philosophy of life' requires a coherent set of issues about fundamental aspects of human existence, and includes broad philosophies such as humanism, but does not extend to more general views about society."
- His submission is that what is required is a philosophical belief based on a philosophy of life, not a scientific or political belief or opinion, or a lifestyle choice. Both sides refer to dictionary definitions of philosophy, as did the Regional Employment Judge, but I do not find them particularly helpful to resolve the question, since, as one would expect, each dictionary referred to has a number of definitions of philosophy. It is, as I have said, common ground that there must be some limitation, and hence Malcolm Evans, cited by Vickers, from a work "Religious Liberty and Non-Discrimination" is plainly right to say that "no system could countenance the right of anyone to believe anything and to be able to act accordingly." I am satisfied that, notwithstanding the amendment to remove "similar", it is necessary, in order for the belief to be protected, for it to have a similar status or cogency to a religious belief. However, as is apparent from the decision of Elias P in Eweida, which is a decision of the EAT on these Regulations, and not part of the ECHR jurisprudence, even a religious belief is not required to be one shared by others (see paragraph 29):
"Accordingly, it is not necessary for a belief to be shared by others in order for it to be a religious belief, nor need a specific be a mandatory requirement of an established religion for it to qualify as a religious belief. A person could, for example, be part of the mainstream Christian religion, but hold additional beliefs which are not widely shared by other Christians, or indeed shared at all by anyone."
- I conclude that it is not a bar to a philosophical belief being protected by the Regulations if it is a one-off belief and not shared by others, a fortiori where it is likely that others do share the belief. Pacifism and vegetarianism can both be described as one-off beliefs in the sense in which I understand it to be being used by Mr Bowers, namely a belief that does not govern the entirety of a person's life. Hence, provided that there are the limitations referred to above, which I accept as being appropriately applied to the Regulations, I would subscribe, even were the jurisprudence of the ECHR not otherwise, as I conclude it to be, persuasive, if not binding upon me, to the proposition that, as concluded by the Court in Campbell in paragraph 36, the philosophical belief in question does not need to constitute or "allude to a fully-fledged system of thought", provided that it otherwise satisfies the limitations set out in paragraph 24 above. As it was put in argument, such philosophical belief does not need to amount to an '-ism'.
- I turn to Mr Bowers' next suggested limitation, relating to political belief. As appears from the passage in Hansard, the Attorney General suggested that "support of a political party" might not meet the description of a philosophical belief. That must surely be so, but that does not mean that a belief in a political philosophy or doctrine would not qualify. The Attorney General's other example of a suggested non-candidate was a belief in the supreme nature of the Jedi Knights, and this would fail on the basis of non-compliance with at least four of the limitations suggested above. However, belief in the political philosophies of Socialism, Marxism, Communism or free-market Capitalism might qualify. There is nothing to my mind in the make-up of a philosophical belief – particularly against the background of Article 14 of the EHCR referred to above – which would disqualify a belief based on a political philosophy. The belief asserted by the Respondent in this case, by reference to his alleged philosophical belief in anthropogenic climate change, if established, is likely to be characterised as a political belief: see paragraphs 3 and 4 in my judgment in relation to Vice-President Gore's film in R (Dimmock) v Secretary of State for Education and Skills  1 AER 367. But I do not see that as a ground for excluding it, if it be otherwise qualified as a genuinely held philosophical belief. It seemed to me that the real concern that Mr Bowers had, and one which the court would naturally share, would be the fear that reliance could be placed upon an alleged philosophical belief based on a political philosophy which could be characterised as objectionable: a racist or homophobic political philosophy for example. In my judgment, the way to deal with that would be to conclude that it offended against the requirement set out in paragraph 36 of Campbell, that the belief relied on must be "worthy of respect in a democratic society and not incompatible with human dignity" or, in accordance with paragraph 23 of Williamson, "a belief consistent with basic standards of human dignity or integrity". Paragraph 36 in Campbell expressly refers, as the source of this requirement/caveat to Article 17 of the ECHR, which deals with "Prohibition of abuse of rights".
- As to Mr Bowers' suggested limitation by reference to a belief based upon or by reference to science, this appears to me to be drawn by him from two sources. The first is his reference to what must be the first appearance in a bundle of legal authorities of the History of Western Philosophy by Bertrand Russell. Russell commences his introduction by a discussion of the word philosophy, which has, as he says, been used in many ways, some wider and some narrower. He continues "Philosophy, as I shall understand the word, is something intermediate between theology and science". He thus creates his own parameters, which indeed extend to a compartmentalisation of history, whereby theology dominated in primitive times, philosophy began in Greece in the sixth century BC, was again submerged by theology as Christianity rose and Rome fell, and remained dominant throughout the Middle Ages thanks to the pre-eminence of the Catholic church, and was then followed by "the third period, from the seventeenth century to the present day … dominated, more than either of its predecessors, by science; traditional religious beliefs remain important, but are felt to need justification and are modified wherever science needs to make this imperative." But these categorisations, even by someone as eminent as Bertrand Russell, are not conclusive. The second source for his argument appears to be the decision of Elias P in McClintock, by reference to what he said in paragraph 45 of his judgment, which I have set out in paragraph 16 above. But that seems to me, as I have said above, to mean that Mr McClintock was not acting on the basis of a philosophy, as opposed to his acting on the basis of a philosophy derived from science.
- In my judgment, if a person can establish that he holds a philosophical belief which is based on science, as opposed, for example, to religion, then there is no reason to disqualify it from protection by the Regulations. The Employment Judge drew attention to the existence of empiricist philosophers, no doubt such as Hume and Locke. The best example, as it seems to me, which was canvassed during the course of the hearing, is by reference to the clash of two such philosophies, exemplified in the play Inherit the Wind, i.e. one not simply between those who supported Creationism and those who did not, but between those who positively supported, and wished to teach, only Creationism and those who positively supported, and wished to teach, only Darwinism. Darwinism must plainly be capable of being a philosophical belief, albeit that it may be based entirely on scientific conclusions (not all of which may be uncontroversial).
- The last of Mr Bowers' careful and persuasive submissions needs to be addressed, and that is his case that the provisions of paragraph (1)(d) of the Regulations must be borne in mind, i.e. that "a reference to belief includes a reference to lack of belief". He submits that, if the Respondent's belief in climate change and its consequence is to be allowed to amount to a philosophical belief, then the absence of such a belief, the belief, for example, that man is not causing climate change, and that development of the world's resources is an imperative, then that too would have to amount to a philosophical belief, manifested, for example, by driving a gas-guzzling car and taking frequent flights. But that, in my judgment, is a non sequitur. It may be possible for someone to establish such a philosophical belief, but it is certainly not necessary in order for Miss Rose's argument to succeed. The existence of a positive philosophical belief does not depend upon the existence of a negative philosophical belief to the contrary. What is intended to be protected by paragraph 1(d) is discrimination against a person on the grounds of his lack of belief. Thus, if the Respondent has his philosophical belief in climate change, and he were to discriminate against someone else in the workforce who does not have that belief, then the latter would be capable of arguing that he was being treated less favourably because of his absence of the belief held by the Respondent.
- For these reasons I dismiss Mr Bowers' appeal, and uphold the decision of the Employment Tribunal, provided that it is, and is only, in the terms of paragraph 1(a) of the Judge's judgment as amended by me in paragraph 7 above. Further I make clear that, at any full hearing, there will indeed need to be evidence and cross-examination relating to the matters set out in paragraph 11 of the Tribunal judgment (in that he has to "adduce evidence from which the Tribunal could conclude that what was done was done on the grounds of his belief"). But particularly, and logically anterior, there will, in the light of the unusual nature of the asserted belief and of its alleged manifestation, need to be evidence and cross-examination directed to the genuineness of the belief (Lord Nicholls in paragraph 23 of Williamson) and also, insofar as relevant, by reference to the limitations and criteria set out in paragraph 24 above.
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