A judge has ruled that Scottish independence is a “philosophical belief” similar to a religion, in a legal case involving a former SNP depute leadership candidate.

Nationalist Councillor Christopher McEleny, who is accusing the Ministry of Defence (MoD) of discrimination, secured a victory last week after an employment tribunal decided his support for independence was “protected” under equality legislation.

Judge Frances Eccles ruled that sovereignty and “self-determination” are “weighty and substantial aspects of human life” and the merits of McEleny’s case can now go forward to a full hearing.

The MoD had argued that independence is not a philosophical belief because it has little impact on people in Tanzania and Peru, an argument the judge rejected.

In 2016 McEleny, who is the SNP group leader on Inverclyde Council, announced his candidacy to become his party’s depute leader.

He was also an electrician at the MoD munitions site in Beith and, around the time of the leadership hustings, was told by his employer that his security clearance had been revoked and he was suspended.

National security officials interviewed him at his home and he was quizzed about his mental health, social media references to Rangers, Trident, and a pro-independence speech he made at an SNP conference.

McEleny quit after believing he had been targeted over his independence stance and pursued a discrimination claim against the MoD.

However, before the case could proceed, McEleny had to convince the judge that his independence convictions or the “social democratic values” of the SNP amounted to a “philosophical” belief under the 2010 Equality Act and were thus a “protected characteristic”.

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Picture: McEleny

A key part of McEleny’s argument rested on a previous case – Grainger plc v Nicholson – which focused on a staff member who believed he was made redundant over his belief in climate change. In Grainger, the judge backed the claimant and ruled that his strong beliefs were protected under the law.

This previous decision stated that a philosophical belief had to be “genuinely held”, not be an opinion or viewpoint based on the present state of information available, and should relate to “weighty and substantial aspects of human life and behaviour”.

The belief must also attain a “certain level of cogency, seriousness, cohesion and importance”, and also be “worthy of respect in a democratic society”.

According to the judge’s summary of the evidence in the McEleny case, the councillor argued that the Grainger tests led to the “inevitable conclusion” that a belief in independence should be protected from discrimination.

McEleny, who was aided by written representations from former First Minister Alex Salmond, argued that his belief independence was “genuinely held” and was “serious, cohesive and important”.

He argued that the 2014 referendum, as well as the SNP’s participation in elections, were evidence of his belief being “worthy of respect” in a democratic society.

The summary noted: “The claimant submitted that he was not claiming to believe that Scottish independence could improve the lives and economy of Scottish people. His belief that decisions regarding Scotland should be made by the people of Scotland regardless of the outcome will never change.”

McEleny, who represented himself, was quoted saying his belief in independence had affected his “entire life, the choices and actions and decisions he takes”.

In response, the MoD accepted that support for independence and the SNP’s values were “worthy of respect”, but claimed there was a big difference between political opinion or affiliation, and a philosophical belief:

“Support for Scottish independence and the social democratic values of the SNP ... is a political opinion. It does not have a similar status or cogency to a religious belief,” the summary stated.

It added: “Whether Scottish people would be better off voting for independence and the SNP ... is like any viewpoint, very much open for debate.

“It is an opinion with which many agree and many disagree. It will very much depend upon the present state of information available.”

The judge’s summary of the UK Government’s position noted: “It [independence] does not impact on people in a general sense and provide a moral and ethical code by which people choose to live their lives.

“Regardless of its importance to the electorate of Scotland ... Scottish independence and the SNP have no substantial impact on the lives of citizens in for example Tanzania, Peru or India.”

The MoD also claimed that independence and the values of the SNP are not political opinions worthy of respect in any democratic society outwith the UK.

The summary stated: “He [the MoD solicitor] described them as a constitutional matter of concern to the UK but that is as far as they go.”

The UK Government department also argued that support for independence is not on a par with a belief in democratic socialism, free market capitalism, Marxism or “similar” political philosophy.

Eccles' summary of the MoD evidence concluded: “A belief in Scottish independence does not impact upon the whole of mankind in terms of how we lead our lives or at least should lead our lives according to those who hold the belief.

“It lacks the moral or ethical conviction required to amount to a philosophical belief which is why ... the claim must fail.”

In her ruling, the judge agreed with the MoD that support or active membership of a political party does not in itself amount to a philosophical belief, and argued that McEleny’s backing for the SNP’s social democratic values does not meet the requirements:

“If the SNP was to abandon its commitment to Scottish independence, something which I accept is unlikely, I am in no doubt that it could no longer be guaranteed the claimant’s support.”

However, she wrote that McEleny’s belief in independence is not simply an opinion or viewpoint based on the present state of information available.

“He does not believe in Scottish independence because it will necessarily lead to improved economic and social conditions for people living in Scotland. It is a fundamental belief in the right of Scotland to national sovereignty.”

The judge continued: “I also do not accept that because Scottish independence might not impact on someone living in Tanzania ... or that Scottish independence is not of concern to a Tanzanian prevents the claimant’s belief from being philosophical in nature.

“I am in no doubt that throughout a significant part of the last century national sovereignty and independence from British rule were weighty and substantial aspects of life in Tanzania, or Tanganyika as it then was.”

She added: “The claimant has persuaded me that his belief in Scottish independence has a sufficiently similar cogency to a religious belief as required by Justice Burton in Grainger to qualify as a philosophical belief.”

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Picture: Aamer Anwar

The ruling means McEleny’s belief in independence can now be relied on as a “protected” characteristic. A full hearing will take place in the case.

Lawyer Aamer Anwar, speaking on behalf of McEleny, said:

“Councillor McEleny welcomes this decision which makes legal history as it establishes in principle, a belief in Scottish Independence is capable of being a “philosophical belief” and therefore a protected characteristic under the Equality Act 2010.

"This legal precedent now enables my client to pursue a claim for direct discrimination alleging that he was discriminated against because of this belief.

"To date the MoD tried to maintain that his belief in Scottish independence could not be protected from discrimination yet they have lost their core argument in court.

"It is completely unacceptable that the UK Government and Whitehall officials had Cllr McEleny suspended as he alleges because of his political affiliation and his belief in Scottish." independence."

An MoD spokesperson said: "It would be inappropriate to comment on the details of an ongoing employment tribunal."