Churches must lift ban on employing homosexuals ?

An article in this weeks "Observer" Newspaper says that the European Commission has told the British Government that exemptions for Religious Employers in the Employment Equality (Sexual Orientation) Regulations 2003 are illegal and do not correctly implement the European Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

The Exemptions are laid down in Reg 7(3) as follows

7(3) This paragraph applies where -
(a) the employment is for purposes of an organised religion;
(b) the employer applies a requirement related to sexual orientation -
(i) so as to comply with the doctrines of the religion, or
(ii) because of the nature of the employment and the context in which it is carried out, so as to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers; and
(c) either -
(i) the person to whom that requirement is applied does not meet it, or
(ii) the employer is not satisfied, and in all the circumstances it is reasonable for him not to be satisfied, that that person meets it.

The Observer Article states that
"A "reasoned opinion" by its lawyers informs the government that its "exceptions to the principle of non-discrimination on the basis of sexual orientation for religious employers are broader than that permitted by the directive. The highly unusual move means that the government now has no choice but to redraft anti-discrimination laws, "

Now with the Utmost Possible Respect (as we lawyers sarcastically put it) to both the Observer and the European Commission both seem to be ignoring the fact that the question of whether the exemptions in the Regulations complied with the Directive was carefully considered by the High Court in the case of Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 In that case the Judge clearly stated that the European Directive had been properly implemented by the British Employment Regulations and the exemptions for religious organisations were legal. Nobody has appealed that decision to the European Court of Justice or to the UK Supreme Court and therefore that decision by the High Court represents the current legal position.

In a society governed by the rule of law courts decide what the law is and a legal opinion, however "reasoned" it may be, cannot overrule or take precedence over a decision by a court. Therefore the British Government is fully entitled to ignore the "reasoned opinion" from the European Commission unless and until the European Court of Justice itself gives a judgment on the issue. I would go further and state that the British Government is legally and morally obliged to ignore the European Commission view where that view, as in this case, is in conflict with a decision of the High Court which is entitled to have its decisions respected and supported by the British Government. Decisions by national courts on questions of European Law can only be overruled by the European Court of Justice and not by the bureaucrats of the European Commission no matter how "reasoned" their opinions may be.

Italian Crucifix Case - Part 2 - Europes Dredd Scott ?

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to implement the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc.

Article 46 of the Convention says
Binding force and execution of judgments
1 The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.
2 The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution.

If the Judgment is not overturned on Appeal then Italy has to report to the Council of Ministers of the Council of Europe what it is doing to implement the judgment, it cannot simply ignore it unless it withdraws from the Council of Europe and the Convention itself, in addition since the Charter of Rights in the new EU Constitution/Lisbon Treaty in effect incorporates European Convention on Human Rights into EU Law, Italy would have to withdraw from the EU if it wanted to ignore the ruling and I cannot see it doing that. Therefore unless the Grand Chamber of the ECHR overrules this Judgment on appeal Italy, and indeed the rest of Europe, has a serious problem; for example in Greek and Cypriot Schools it is common to see Icons displayed, but under this judgment those Icons will have to be removed and, arguably so will displays of Christianity from all Public buildings throughout Europe.

In the UK because of s2 of the Human Rights Act the ruling has immediate effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling. Judgments such as this tend to have a large degree of "mission creep" as they are implemented by public authorities.

However I do wonder if perhaps this Judgment may, in time, come to be seen as European "Dredd Scott" case ie a moment when the implications of a Court ruling are so significant and so contrary to public opinion that they lead to a public backlash. Americans will, be familiar with the 1857 Dredd Scott case when the US Supreme Court defended slavery to such an extent that, in effect, it extended slavery to the free as well as the slave states and that ultimately strengthened the abolitionist movement and is often quoted as a leading cause of the American Civil War. I often refer to the Dredd Scott case when arguing with my more "liberal" legal colleagues who simplistically believe that Supreme Courts are always filled with nice liberal types who will uniformly do the right thing. They are not, Judges are as prone to personal prejudices as anyone else which is the danger of trying to use the Courts to force change in society rather than relying on the slower processes of democracy, voting and debate.

If I can misquote Abraham Lincoln

"We shall lie down pleasantly dreaming that the people of Europe are on the verge of becoming a multi-faith society, and we shall awake to the reality instead, that the European Court has made Europe a non-faith society"

Italian Crucifix Case

There is at present no Judgment in English concerning the European Court of Human Rights decision in the "Italian Crucifix Case of Lautsi v. Italy however the ECHR has issued a Press Release which can be read HERE

This seems to me to be an extraordinarily wide decision which could be used, for example, to prevent State Schools putting on Nativity Plays or even preventing Muslim Teachers wearing Hijabs in Schools, in the case of Dahlab v Switzerland in 2001 the ECHR defined the Hijab as a "religious symbol" so there are a lot of implications in saying that Religious Symbols cannot be displayed in schools. What is most surprising is that the ECHR did not apply its own concept of "Margin of Appreciation" and recognise that this type of issue should be left to individual countries to decide. In effect the ECHR has extended to the whole of Europe the French concept of strict separation between religion and state schools which ignores the different Educational traditions and systems in the separate nations of Europe.

As several press articles on the case have pointed out the Court did not expressly order the School to remove its Crucifix but this is because the Court does not have the power to make such orders what it does do is find a violation of the Convention and then the Italian Government has to report back to the Council of Europe exactly what it proposes to do in order to impliment the ruling which in this case will mean removing crucifixes from the classrooms, courts public buildings etc. In the UK because of s2 of the Human Rights Act the ruling has effect as a binding precedent in UK law and I suspect we will shortly be hearing about public displays of Christmas Decorations being removed, School Nativity Plays being banned etc by local authorities who will say they are acting in accordance with this Court ruling.

We will have to see whether the ECHR may overrule itself on an appeal but in the meantime the judgment (once it is published in English) can and will apply in the UK. As a (Muslim) colleague said to me regarding this case "Human Rights seem to be increasingly used to end Human Rights"

As an aside it would have been interesting if this case had occurred before the Irish voted on the Lisbon Treaty. Before anyone emails me pointing out that the ECHR is not part of the EU, yes I know, however the Lisbon Treaty contains a Charter of Fundamental Rights Articles 10 and 14 of which conform to the provisions considered by the ECHR in this case. Article 52.3 of the Lisbon Treaty Charter of Rights says that where the Charter is equivalent to the ECHR it shall be interpreted in accordance with the ECHR decisions so this decision on the Crucifix is, in effect now part of EU law which is binding on the 27 members of the EU. I will be interested to see how Cyprus, Malta, Greece and Poland react when they realise the implications of this case. Incidentally the Lisbon Treaty Charter of Rights has 50 separate rights, the USA has managed reasonably well for 200 years with a Bill of Rights of 10 articles but thats the EU for you.

As a final, and I accept somewhat facetious point, will this ruling mean that Schools will also have to remove posters taking about global warming now that belief in Climate Change has achieved the status of a "philosophy" in Nicholson v Grainger UKEAT/0219/09/ZT I will write about this case further but it is certainly worth a read however I think Mr Nicholson may have difficulty in winning his case because what he seems to be objecting to is that his employers did not act in accordance with his (Nicholsons) beliefs and objected to him expounding them. This raises the issue of how far it is permissible to attempt to convert fellow workers to your philosophical (or religious beliefs