Sunday, 11 September 2011

The Equality and Human Rights Commission are engaged in a consultation exercise concerning 4 Religious Freedom cases currently before the European Court of Human Rights. Below is the submission I made to the Commission


1) It is difficult to understand why the Commission had chosen to intervene in these
cases at this late stage when the only legal issues that can be considered are
Articles 9 and 14 of the European Convention on Human Rights. All 4 cases were heavily publicised in Britain as they were occurring and the Commission therefore must have been aware of them, must have known that the issues raised were of general concern and knew that it had the opportunity to intervene if it chose to do so. Commission intervention whilst the cases were proceeding through the British
Courts would have seemed more sensible and appropriate than intervening at this
late stage in the cases

2) Besides the inevitable problems of legal uncertainty caused by delay there is the
specific problem that by waiting until the cases have reached the European Court of
Human Rights means that only one part of the issues raised in these cases is being
addressed by the Commission. In the UK Court hearings Articles 9 and 14 were
being considered under the provisions of the Human Rights Act 1998, and in
addition the Religious Discrimination provisions of the Employment Equality
(Religion or Belief) Regulations 2003 ( now codified in the Equality Act 2010 ) were
also being considered.

3) A major problem in the area of Religious Discrimination law is the issue of indirect discrimination through the application of ostensibly neutral working practices and whether these are a “proportionate means of achieving a legitimate aim” (reg 3, Act s19). The issue of “proportionality” was a crucial point in all 4 cases when they were before the UK Courts and it is difficult to understand why the Commission did
not intervene when the cases, in particular Ladelle were still at the UK level and
when the Commission could have made representations on the Discrimination test
of “proportionality” as well as the Article 9 test of “necessity”


4) This submission makes the general point that Article 9 gives an absolute right
“either alone or in community with others and in public or private, to manifest
religion or belief, in worship, teaching, practice and observance.”
This absolute right is subject only to the restrictions laid down in Article 9.2
“such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.”
Therefore any restrictions which are not “necessary” are not lawful and “necessary”
means more than merely “desirable”. It is clear from the cases before the
European Court that the UK Courts have not been applying the principles of 9.2
correctly in particular they have not ensured that any limitations are objectively
“necessary” as opposed to merely considered by the employers to be desirable

5) In addition the UK Courts have not been correctly applying the legal test required by 9.2 but have instead applied a much lighter and vaguer test devised by themselves. In the case of Begum v. Denbigh High School [2006] UKHL 15, which dealt with the case of a Muslim Schoolgirl wanting to wear a Jilbab at school Lord Hoffman said in para 50
“Article 9 does not require that one should be allowed to manifest one's religion at
any time and place of one's own choosing.”
And this principle was subsequently quoted and applied by the Court of Appeal in
para 54 of the judgment in the case of Ladelle which is before the European Court.
It is worth noting that the words of Lord Hoffman with regard to the application of
Article 9 were also applied in the cases of Playfoot v Millais School [2007] EWHC
1698 (Admin), (para 21), Johns v Derby City Council [2011] EWHC 375 (Admin)
(para 79) and the Northern Ireland case of West [2006] NIQB 39 (para 11)

6) This test created by Lord Hoffman and subsequently applied by the UK Courts is an incorrect approach to Article 9. Under Article 9.1 everyone has an absolute right to
manifest their religion at a time and place of their own choosing unless the specific
form of manifestation is prohibited by “limitations prescribed by law and necessary
in a democratic society” The test being applied by the UK Courts to the
manifestation of religion is therefore ignoring and short circuiting the specific and
carefully laid down limitations authorised by Article 9.2. For that reason alone the
decisions in question in this application to the European Court are suspect.

7) In addition in the cases of Ladelle, Eweida and Chaplin the UK courts have entered into areas of Theological speculation which are inappropriate areas for
determination by Secular Courts. This point will be dealt with in more detail below


8) It is to be welcomed that the Commission is to support these cases and is to defend the right of Christians to wear religious symbols. Whilst the wearing or display of a Cross is not a requirement of the Christian faith the wearing of items such a Cross or Crucifix, is a long established practice in all mainstream Christian denominations. Whilst there are differences in emphasis and practice between various strands of Christianity as to the importance, and indeed the acceptability, of religious symbols and pictures respect for the Cross is universal

9) In these two cases however the Courts UK applied a test of whether the wearing of
the Cross was a “requirement” of the Christian religion and then rejected the claims
in part because it was not. There is nothing in Article 9 or in the case law of the
European Court to justify such a distinction being made. The wearing of a religious
item of clothing, such as a Cross, a Sikh Turban or Kara Bracelet, a Jewish
Yarmulka or Muslim Hijab are all “manifestations” of Religion and as such their
wearing is protected under Article 9 unless one of the limitations set out in 9.2 can
be applied. The fact that in applying Article 9 the UK Courts have sought to
distinguish between religions which have mandatory clothing rules and those which do not is itself a breach of Article 14 in that it discriminates between members of
different religions on the basis of the doctrines and Theology of those religions.

10) In both these cases the UK Courts have found against manifestations of religion by Christians wearing a Cross or Crucifix however the UK Courts have at the same
time protected the wearing of the Sikh Kara Bracelet and the Sikh Turban Watkins-
Singh v Aberdare Girls' High School [2008] EWHC 1865 (Admin) and Mandla v
Dowell Lee [1983] 2 AC 548. The difference between the way UK Courts have
treated the wearing of the religious symbols of the Sikh Religion and the wearing of
religious symbols of the Christian religion is striking and a prima facie breach of
Article 14. For the Avoidance of doubt I do not in any way object to or disagree with the decisions of the UK Courts in these two cases and the supports the right of Sikhs to manifest their religion by wearing these items. It is suggested that the attitude and principles used by the UK Courts in deciding these two cases should also be applied to Christians wishing to wear a cross which is a vital Christian symbol the wearing of which is of long standing.


11) The Commission has said that it will oppose the appeals in the cases of McFarlane and Ladelle and clearly considers that the issues in the two cases are the same. I disagree and suggest that the two cases are clearly distinguishable on their facts and in the legal principles applicable to them. This submission will concentrate solely on the case of Ladelle which we would suggest shows an inability on the part of the Courts, and the Commission, to distinguish between simple discrimination and refusal to be complicit in an immoral act. In addition the case demonstrated an unwillingness on the part of the UK Courts to properly consider or apply the limitations in Article 9.2 in particular the question whether the limitations were “necessary in a Democratic Society”

12) In respect of her desire not to participate in same sex partnership ceremonies Ms
Ladelle was manifesting her religion and belief in “practice and observance”. Since
she believed that same sex relationships are sinful she was aware that by
participating in them she would herself be morally complicit in that sin and therefore any attempt to force her to participate in them was contrary to her rights under Article 9 because it was an attempt to force her to act in a way that was inconsistent with her moral beliefs. Her objections should only have been overridden if that was “necessary in a democratic society”

13) In para 56 of its judgment the Court of Appeal said
“Ms Ladele's objection was based on her view of marriage, which was not a
core part of her religion; and Islington's requirement in no way prevented her
from worshipping as she wished. “
and this section shows a fundamental misunderstanding of Christian belief on
marriage, or Article 9 and of the proper role of the Courts. It is not for Secular
Courts to distinguish what is or is not a “core part” of a religion and Article 9 is
concerned with freedom of religion not freedom of worship. Like all elements of the
Convention Article 9 protects both positive and negative freedom. To force
someone to act in a way contrary to their religious beliefs is as bad as preventing
someone acting, or worshipping in accordance with their religious beliefs but that is
what Islington Council and the Court of Appeal .required of Ms Ladelle

14) In Ms Ladelles case there is absolutely no evidence that it was “necessary” to make her participate in same sex ceremonies. The evidence in the case showed that the service provided by Islington was not in any way affected by Ms Ladelle ensuring
that she was not rostered for same sex ceremonies therefore requiring her to
participate was not “necessary” in any meaningful sense of the word. The fact that
her views may have been contrary to the Equality policy of the Council, which is
arguable both ways, still does not make it “necessary” to force her to act in a
manner which was contrary to her religious beliefs. The issue of whether the
Councils actions were “necessary” was never properly addressed by the Court


15) The Commission has asked for views regarding whether the law should be changed to explicitly require “reasonable accommodation” in cases of religious
discrimination. Whilst such a change may be desirable there are understandable
objections to making a change which might appear to be privileging claims of Religious Discrimination over other forms of discrimination. For that reason either
the change should be applied to all forms of discrimination or the change should not
be made.

16) It is in any event questionable how necessary the proposed change is and whether the problem is not that the wording of the law is inadequate so much as that the Courts have not been applying the law correctly. The law, as already outlined
above, requires that a “provision criterion or practice” must be a “proportionate”
means of achieving a legitimate aim. In addition as already discussed Article 9.2
requires that any limitation on Religious Freedom must be “necessary”. What has gone wrong in the various religious freedom cases that have concerned Christians is that the Courts have taken an unduly restrictive view of what is “proportionate” or “necessary” and have not engaged in any real balancing exercise when different rights are in conflict. The best way of dealing with this may be for the Commission to issue guidance under s14 Equality Act 2006 making it clear that Employers must ensure that their requirements are “proportionate” and “necessary” and also making the point that where different rights are in conflict no particular set of rights can take precedence.

1 comment:

jonathanj said...

I'm curious that the court considered itself competent to determine what was not a "core belief" of the Christian religion. How can this be determined by a body which can utilise concepts of law only rather than theology?