Thursday, 5 November 2009

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

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