If only we had a Human Rights Act… What we can learn from the UK’s religious freedom ruling

A recent decision of the Court of Appeal of England and Wales in Ngole v University of Sheffield [2019] EWCA Civ 1127, provides a timely and important parallel to the current controversy stirred by the Israel Folau case in Australia. The Ngole case concerns the expression of religious views on a public social media platform, disapproving of same sex marriage and homosexual acts, and the dismissal of the person in consequence.

Mr Ngole, a devout Christian, posted a series of comments on his Facebook account including Biblical references condemning homosexuality as sinful in the context of a discussion about a prominent story on an American news website relating to same-sex marriage. He was a student in a Master of Social Work program at the University of Sheffield. The University referred Mr Ngole to a ‘Fitness to Practise’ Committee, which invoked the Code of Conduct of the Health and Care Professions Council (‘HCPC’). The Committee considered that any expression of disapproval of same-sex relations was a breach of two professional requirements under the Code of Conduct and Guidelines: (a) to keep high standards of professional conduct and (b) to make sure that his behaviour does not damage public confidence in the profession. The Committee expelled Mr Ngole from the Social Work program and the University’s Appeal Committee upheld this decision.

Mr Ngole sought judicial review of the University’s decision in the Administrative Court on the basis that it was unlawful interference of his rights under Articles 9 and 10 of the European Convention on Human Rights and that the decision was arbitrary and unfair. The Deputy High Court Judge, Judge Rice, dismissed Mr Ngole’s judicial review challenge and he appealed that decision. While commending the judge’s ‘full and meticulous judgment’, the appeal was upheld.

The argument before the Court focused on two rights under the European Convention on Human Rights—the right to freedom of expression (Article 10) on the one hand, and the right to freedom of religion (Article 9), on the other and, more particularly, what are appropriate limitations on freedom of expression, including in this instance, freedom of religious expression. The Court approved of the primary judge’s view that contribution to a political debate was not a ‘protected manifestation of religion’ and therefore the University’s decision was not an interference with Article 9. It was accepted that there was a prima facie case of interference with the right to freedom of expression (Article 10), and the question therefore was the lawfulness of that interference. It was noted that the ‘religious dimension’ of the case remained legally relevant to the question of whether the interference was lawful (para 61).

In its summary of its conclusions, the Court noted that the right to freedom of expression is not an unqualified right and that ‘professional bodies and organisations are entitled to place reasonable and proportionate restrictions on those subject to their professional codes; and, just because a belief is said to be a religious belief, does not give a person subject to professional regulation the right to express such beliefs in any way he or she sees fit’ (para 5(4)).

The essential principle is that limitations on freedom of expression must be prescribed by law, serve a legitimate aim, and any sanction must be proportionate to meeting that aim. Maintaining confidence in the relevant profession is a legitimate aim, but this is ‘a mere threshold’ to the key decision of what is a proportionate response: ‘[I]t cannot extend to preclude legitimate expression of views simply because many might disagree with those views: that would indeed legitimise what in the United States has been described as a “heckler’s veto”’ (para 105).

The Court said that the Judge Rice should have recognised that Mr Ngole’s comments were made ‘in a social as opposed to a professional context’, and that his beliefs were ‘a genuine contribution to an important public debate, and were in response to direct questions’ (para 96).

So, how far can it go? The legitimate aim of such regulation ‘must extend so far as to seek to ensure that reasonable service users, of all kinds perceive they will be treated with dignity and without discrimination’. As the Court explained, ‘Social work service users cannot usually choose their social worker. The use of aggressive or offensive language in condemnation of homosexuality, or homosexual acts, would certainly be capable of undermining confidence and bringing the profession of social work into disrepute. As the Guidance makes clear, the Appellant had an obligation not to allow his views about a person’s lifestyle to prejudice his interactions with service users by creating the impression that he would discriminate against them’ (para 106).

It was not shown that Mr Ngole did discriminate against people in same-sex relationships, nor was it suggested that he would ever do so. There was also no evidence that any service user had read the postings.

Rather than Mr Ngole being ‘entrenched’ and ‘intransigent’ and lacking insight, which the University alleged, the Court considered that his apparent intransigence ‘was an understandable reaction to what he was being told by those in charge of the disciplinary process, namely that he could never express his religious views on topics such as sexual morals in any public forum, i.e. that there was a blanket ban’. Such an absolute stance, moreover, did not accord with the HCPC guidance ‘or common sense’: ‘Crucially, at no stage did those in charge of the disciplinary process make the University make it clear that it was the manner and language in which [Mr Ngole] had expressed his views which was the problem or discuss or offer him guidance as to how he might more appropriately and moderately express his views on homosexuality in a public forum and in a way in which it would be clear that he would never discriminate on such grounds or allow his views to interfere with his work as a professional social worker’ (para 111).

The Court concluded that the sanction imposed by the University was not a proportionate response, but rather a ‘too-rapid and disproportionate conclusion that removal from the course was necessary, rather than the institution of a calm, continuing process of guidance of [Mr Ngole], spelling out what he could and could not properly say, and the circumstances in which he could say it’. The University had an obligation ‘to exercise care and restraint, and to take unpopular decisions, if such represent the just and proportionate result’ (para 138).

In the circumstances, the disciplinary proceedings were ‘flawed and unfair’ to Mr Ngole, the fault for which lay with the University. Importantly however, the Court clearly upheld the right of professional bodies and organisations to place restrictions on those subject to their professional codes, so long as such restrictions are ‘reasonable and proportionate’, but also stated that ‘the obligation to maintain confidence cannot extend to prohibiting any statement that could be thought controversial or even to have political or moral overtones’ (para 105).

In this instance, the remedy lay in remitting the case for a new hearing before a differently constituted Fitness to Practise Committee.

Lessons for Australia

Could such a case arise in Australia? As seen in my larger article in this issue of the LSJ, ‘Freedom of religion and speech—it’s time for change’, matters invoking articles 18 and 19 of the International Covenant on Civil and Political Rights (‘ICCPR’), analogous to the European Convention articles under consideration in this case, can be brought to the Australian Human Rights Commission (‘AHRC’), but only where the ‘actor’ is the Commonwealth. A University is not within ‘the Commonwealth’. So Mr Ngole could not bring such a matter to the AHRC if the matter were located here.

However, if we had a full, or even fuller, domestic implementation of the commitments in the ICCPR by a positive framing of rights, including those set out in articles 18 and 19, in an Australian Human Rights Act, the door would be open for a person like Mr Ngole to frame his complaint in Australia.

In the UK, the matter was heard in the court. In Australia, if we continued the existing ability of the AHRC to endeavour to conciliate complaints, including the jurisdiction in relation to human rights complaints such as these, there would be an opportunity for the AHRC to bring the parties together and to seek a conciliated outcome. As shown in an article in the July issue of the Australian Law Journal (R Croucher, ‘“Seeking Equal Dignity without Discrimination”—The Australian Human Rights Commission and the Handling of Complaints’ (2019) 93 ALJ 571), the AHRC’s track record over the years has been a remarkable one of success, with fewer than two per cent of matters ever ending in court. A combination of a proven process of conciliation, together with the possibility of clarification and enforcement through the courts, should be on the table for consideration in the next chapter of considering the positive framing of rights and freedoms in Australia.

The Ngole case is not a triumph for freedom of religion, but a demonstration of how the balancing of freedom of speech, including freedom of religious expression, can be moderated through a test of proportionality.

Emeritus Professor Rosalind Croucher AM is President of the Australian Human Rights Commission.