Freedom of expression constitutes one of the essential foundations of such aJulian makes a point on discrimination, basing it on pluralism, which I confess I'd never quite seen to do:
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. [From case law based on article 10 of the ECHR]
The indiscriminate application of non-discrimination standards to clubs and societies is destructive of the very pluralism that characterises Western democracy. A political party must draw distinctions on political grounds if it is to retain its identity. An orchestra must select on the basis of musical ability and instrumental need if it is to perform well. A sports team must select sportsmen and women according to sporting ability. These criteria of dstinction might be objectionable in another context. A political party should certainly not select on the basis of sporting ability, for example. It should also be noted that the application of certain criteria may be highly situation-sensitive. This is very clear in the case of gender-specificity, which may rightly play a role in some sports and not others, or in some musical contexts, but not others. A students’ union has no interest in destroying (e.g.) single-sex rugby or the male voice choir, by insisting on the admission of women, let alone the abandonment of trials or auditions.Julian then deals with 'Necessary and proportionate limitations on the rights of Christian Unions' in section 8, before drawing conclusions in section 9.
By the same token, a religious society may decide to protect its identity by stating its religious position and requiring members to adhere to that position. The students’ union has no interest in promoting a particular type of religious society, for example, by permitting a ‘Christian society’ but prohibiting a ‘Roman Catholic society’. Nor does it have any interest in ensuring that all religious societies take the form of interest-groups rather than that of a group sharing a commitment to a belief. Its role is limited by the need to respect pluralism – i.e. to allow students to form whatever clubs and societies they choose. That form might be open to all interested students, or it may be restricted to those who can share the identity of the society. It is up to the students! Mark Shaw QC’s failure to recognise the significance of pluralism at para. 92(4) of his ruling is one of its most disturbing features.