Tuesday, 3 November 2009

Philosophical Belief and Nationalism

A few years ago I assisted a BNP activist take a case to an employment Tribunal under the The Employment Equality (Religion or Belief) Regulations 2003 and argued that Nationalism was a philosophical belief.

Baggs V Fudge was the case and it was reported in Hansard and many law journals.



We lost as the Tribunal chairman ruled that the word 'similar' in the regulations after religious belief meant that the philosophical belief had to be religious or linked to religion.

This legal position was changed in the Equality Act 2006 that removed the word similar.

Since then a case involving a BNP activist has been held that the belief of Nationalism is a philosophical belief and this line of legal thinking has been clarified today in a case in London ;


As an Odinist and a Druid my opinions are protected anyway under the regulations but this case clarifies that an active commitment to Nationalism as a philosophy is an important part of a philosophical belief as here ;

"sufficient cogency, seriousness, cohesion and importance and are worthy of respect in a democratic society."

This law is based on a European Directive which is itself based on a series of laws that demand that the definition of discrimination includes political belief - so the fact is that any discrimination in the workplace against BNP members is unlawful, will result in an employment tribunal case and unlimited damages.

People best remember that.

The ECHR and EU laws all state that any discrimination against an individual BNP member on the grounds of their political belief is unlawful.

In fact I have a superb case law argument prepared just for this issue - so if anyone wants a copy send me an e mail and I will post it to you for your use in an employment tribunal case.

It will save you about ten grand in barristers fees - and win you the case.

In relation to the issue of 'respect in a democratic society' this is defined in various ECHR case law including the Handyside v. United Kingdom, European Court of Human Rights, Judgement of 7 December 1976 ;


para 49 - The Court's supervisory functions oblige it to pay the utmost
attention to the principles characterising a "democratic society".
Freedom of expression constitutes one of the essential foundations of
such a society, one of the basic conditions for its progress and for
the development of every man. Subject to paragraph 2 of Article 10
(art. 10-2), it is applicable not only to "information" or "ideas"
that are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb the
State or any sector of the population. Such are the demands of that
pluralism, tolerance and broadmindedness without which there is no
"democratic society". This means, amongst other things, that every
"formality", "condition", "restriction" or "penalty" imposed in this
sphere must be proportionate to the legitimate aim pursued. "

In the case of Campbell V Cosans ;


The court held ;

" PARA - 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 (art. 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 (art. 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 (P1-2): 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 (art. 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" (see, most recently, the Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 25, par. 63) 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 (P1-2) being dominated by its first sentence (see the above-mentioned Kjeldsen, Busk Madsen and Pedersen judgment, pp. 25-26, par. 52).

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. "

Therefore the definition of philosophical convictions are those includes political parties that are ;

1) legal eg the party is not proscribed by law as stated under para 59 of Young, James and Webster 10981 and under Article 11 para. 2 eg the BNP are a registered political party and not a proscribed political party therefore the party comes under the regulations and its members are protected as having a philosophical belief

2) That those views are not unlawful under any laws of the state at the time of the claim eg holding that opinion is illegal and defined as unlawful under Article 18 ECHR and also the criminal law - which is not the case with Nationalism

3) That only by the government imposing a derogation under Article 11 section 2, criminalising nationalism and nationalist ideas and banning the BNP can any discrimination against BNP members in the workplace be lawful.

Now the case of Young, James and Webster judgment of 13 August 1981, Series A no. 44, p. 25, par. 63 is an interesting case around Article 11 of the ECHR ;

50. The main issues in this case arise under Article 11 (art. 11), which
reads as follows:

"1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others, including the right to form and to join trade unions for the
protection of his interests.

2. No restrictions shall be placed on the exercise of these rights other than such as
are prescribed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others. This Article (art. 11) shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State."


as it states ;

Secondly, pluralism, tolerance and broadmindedness are hallmarks of a
"democratic society" (p. 23, par. 49). Although individual interests must on
occasion be subordinated to those of a group, democracy does not simply
mean that the views of a majority must always prevail: a balance must be
achieved which ensures the fair and proper treatment of minorities and
avoids any abuse of a dominant position. Accordingly, the mere fact that the
applicants’ standpoint was adopted by very few of their colleagues is again
not conclusive of the issue now before the Court.

and also ;

The protection of personal opinion afforded by Articles 9 and 10 (art. 9,
art. 10) in the shape of freedom of thought, conscience and religion and of
freedom of expression is also one of the purposes of freedom of association
as guaranteed by Article 11 (art. 11).


59. An interference with the exercise of an Article 11 (art. 11) right will
not be compatible with paragraph 2 (art. 11-2) unless it was "prescribed by
law", had an aim or aims that is or are legitimate under that paragraph and
was "necessary in a democratic society" for the aforesaid aim or aims (see,
mutatis mutandis, the Sunday Times judgment of 26 April 1979, Series A
no. 30, p. 29, par. 45). "

Under ECHR law the right to join, campaign and stand for elections in political parties is the primary right in a democratic society under Articles 9, 10, 11 and 14 - therefore any attempt to impose discrminatory policies against BNP members is unlawful.

The other arguments I have drafted up re international law obligations, EU law and case also make this clear.


T W Nicholson v Grainger Plc and others

FACTS The Employment Equality (Religion or Belief) Regulations 2003 prohibit discrimination in the workplace by reason of any religion or belief. The regulations were amended in 2007, so that "belief" now means "any religious or philosophical belief".

Tim Nicholson, who had been head of sustainability, was made redundant by Grainger Plc and brought a number of claims, including unfair dismissal and discrimination on the grounds of religion or belief.

The discrimination claim was on the grounds that Nicholson had "a strongly held philosophical belief about climate change and the environment".

He argued that his beliefs were "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." A pre-hearing review was held to consider various issues, including whether Nicholson's beliefs were protected.

DECISION The employment judge held that Nicholson's beliefs about climate change and the environment were capable of being a belief for the purposes of the regulations, taking into account the case of McClintock, where the EAT held that the test for determining whether beliefs 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."

The employment judge held it was difficult to argue that beliefs around the impact of climate change did not fall within this definition and Nicholson's beliefs gave rise to the sort of moral order derived from most religions.

It was also held that the case could be distinguished from McClintock (where the EAT held that a view relating to adoption by same-sex couples did not fall within the definition) asNicholson's views went beyond a mere opinion as they affected the way he led his life.

IMPLICATIONS This is the first reported case where a claimant has successfully argued a belief not similar to a religious belief may be protected under the regulations. Previously, tribunals have tended to take a narrow interpretation of what could amount to a belief.

For example, patriotism and loyalty to a flag or support for the British National Party were found not to fall within the definition, although both these cases were made before the definition was amended. While not binding on other tribunals, this case does suggest a broader approach.

Based on this view, strong opinions on vegetarianism or sexual abstinence or those of survivalists would arguably be capable of constituting a "belief".

However, as the employment judge noted, claimants may often find it difficult to establish that the reason for their treatment was on the grounds of their belief, so it is unlikely there will be a deluge of these types of claims.

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1 comment:

Andraste said...

Brilliant work Lee. Perhaps an article on the main BNP website about this would be appropriate considering the implications for all BNP members?