The UK government’s attempt to silence church schools on gay marriage is ‘legally flawed’, a human rights expert has warned. According to Professor Christopher McCrudden, a barrister at Blackstone Chambers, moves by the Department for Education (DfE) to penalise schools that refuse to recognise same-sex marriages would be ‘not consistent’ with the European Convention on Human Rights (ECHR).
In a detailed legal opinion, commissioned by The Christian Institute, Mr McCrudden said, ‘The proposed DfE’s guidance is not consistent in several respects with the Department’s legal obligations under either the ECHR or the public sector equality duty. The application of common law and statutory constraints leads to the conclusion that the draft guidance is legally flawed, and would be open to challenge in respect of the effective prohibition on teaching that suggests that same-sex marriages or civil partnerships should not be recognised as being lawful unions under civil law’.
The proposed DfE guidance accompanies the legal standards, which Ofsted use to make judgments about teaching in schools. The guidance states that a school would fail to meet its obligations under the Independent School Standards if the curriculum ‘suggests that same-sex marriages or civil partnerships should not be recognised as being lawful unions under civil law’.
John Denning, education officer at The Christian Institute, commented, ‘These proposals seem to be a deliberate attempt to police the views of Christians, Muslims, Jews and others who hold the traditional view that marriage is the lifelong union of a man and a woman. As such it is clearly incompatible with human rights legislation’.
Mr McCrudden’s opinion also questions the DfE’s legal authority for issuing the guidance, and its consistency with commitments made by government ministers during the passage of same-sex marriage legislation in 2013. McCrudden said, ‘Article 9 recognises not only the right to hold a belief, but the right to manifest the belief, which has been interpreted to mean, to “bear witness in word and deed”.
‘This freedom to manifest religious belief applies not only to protect individuals but also churches and faith schools. Teaching the faith is, for some religions, a way of manifesting their religion, and as such falls under the protection of Article 9.
‘Preventing the teaching of religious doctrine as true, and either requiring that faith schools teach their truth as simply one truth among other equally valid truths when others are offended by it, or requiring faith schools to teach that their truth is less valid, when it runs contrary to government policy as currently reflected in legislation, amounts to a significant limitation on the ability to manifest religious belief protected by Article 9’.