Advocacy competition 2010

The Times/Herbert Smith LLP 2010 student advocacy competition: Should equality laws trump freedom of conscience?

To what extent do equality laws oppress freedom of conscience and how should the courts reconcile competing rights?



Last month Lord Justice Laws hit the headlines by confirming that Relate Avon was within the law when it sacked relationship counsellor Gary McFarlane because he was unwilling to give sex therapy to homosexual couples.

Mr McFarlane’s argument was that his religiously-held belief that homosexual practices were immoral should entitle him to be exempted from working with gay clients. The judge took the opposite view saying that, “The precepts of any one religion cannot sound any louder in the general law than any other.”

In the eyes of some Gary McFarlane will now be a martyr. Other will view him as a bigot who tried to put himself above the law of the land. But whatever your perspective his case provides a perfect illustration of the topic of this year’s Times Student Advocacy competition sponsored by Herbert Smith LLP: Should equality laws trump freedom of conscience?

Entrants to the competition are invited to explore the impact of equality laws as they have progressively embraced more extensive areas of society and business activity.

The past forty years are celebrated for seeing the introduction of a series of laws – culminating in the new Equalities Act - which have entrenched the rights of people regardless of their race, gender, sexual orientation, religion, age or disability.

The conundrum of the current position, however, lies in the way that as the rights of one group are asserted so the rights of others may seem to be curtailed. At what point, in effect, does the right not to be discriminated against – for example, because of one’s age or sexual orientation - become oppressive to those whose sincerely held beliefs (or maybe just practical circumstances) put them at odds with the law.

One of the biggest issues is where the line should be drawn between what one does in public and in private. A graphic example of the way the law has changed in recent years emerged recently when the owners of a B&B who turned away a gay couple discovered that they were exposed to the full rigour of the law even within the confines of their own home.

The level of debate stirred up by his kind of case demonstrates that this issue is by no means fully resolved. Meanwhile the controversies over the wearing of crucifixes at work or about nurses offering to pray with sick patients (and being disciplined for doing so) highlight that employers too are in a crucial and often uncomfortable position. The possibility of complaints by customers and colleagues mean that employers must be watchdogs to ensure that equality laws are obeyed. But what should happen, for example, when a female (potential) client requests an all-female team “for personal reasons”? Can this be deemed a reasonable request? Or is it blatantly discriminatory?

“Just how far should we allow the state to control our lives? And have we got the balance correct between the rights of the individual and competing equality rights?” asks Ian Gatt QC, a partner in Herbert Smith. “These are difficult issues which go to the heart of being a free society and how that can be reconciled with principles of equality.

"What can make it even more complicated is when the various equality laws seem to be in conflict with each other. When these cases come before the courts, is there bound to be a pecking order of equality rights in which, in those immortal words of George Orwell, some are more equal than others?”

“So, to sum up, how can we seek fairly to balance the interests of people who hold competing views and ways of life and orientation? That’s the issue we want entrants to this competition to address.”



To enter, and to find out more, go to The Times website where you will also find five top tips on how to make an effective YouTube presentation.