Author: Steve Foster

Abstract

When one fundamental human right conflicts with another, the law has to maintain a balance between both rights, and ensure that on the facts the strongest claim succeeds. That conflict is more complex when free speech or the manifestation of religious views conflict with the right of certain individuals to be free from discrimination and the duty to promote equality and diversity. This is particularly true when the individual exercising the right of free speech is directly or indirectly involved in the state’s duty to promote equality, most usually as an employee of a public or private employer. Thus, if an employee objects to officiating a gay wedding, or processing an adoption for a gay couple on religious grounds, can the law accommodate and perhaps favour the employee on the basis that they are exercising their religious rights? Alternatively, do such views have to bow to a wider and different social policy of encouraging equality and combatting discrimination against a certain group of people? When that conflict occurs, the courts, both domestic and European, have tended to side with the state, and employers, in giving preference to its equality policies at the expense of individual speech and beliefs. However, the situation may be different when instead of refusing to supply a service on grounds of that person’s sexual orientation, the speaker simply voices an opinion against the other right holder, the speaker then being penalised for that opinion because the opinion is contrary to the employer’s duty to uphold equality. In those cases, the UK courts have insisted that the right of free speech (including religious speech) is accommodated in the balancing act. This article examines UK and European Convention case law in this area, and in particular examines a recent UK Court of Appeal judgment that gives greater weight to free (religious) speech in this context. Specifically, it will explore whether tolerance in free speech can be recognised when such speech conflicts with the tolerance and respect that should be shown to minority groups.

In: The Asian Yearbook of Human Rights and Humanitarian Law
Volume Editors: Javaid Rehman, Ayesha Shahid, and Steve Foster
The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region.

The focused theme of Volume 3 is Law, Gender and Sexuality.
Volume Editors: Javaid Rehman, Ayesha Shahid, and Steve Foster
The Asian Yearbook of Human Rights and Humanitarian Law aims to publish peer-reviewed scholarly articles and reviews as well as significant developments in human rights and humanitarian law. It examines international human rights and humanitarian law with a global reach, though its particular focus is on the Asian region.

The focused theme of Volume 4 is India and Human Rights.
In: The Asian Yearbook of Human Rights and Humanitarian Law
In: The Asian Yearbook of Human Rights and Humanitarian Law