Tuesday 15 January 2013

Eweida and Others - First Views

The European Court of Human Rights decisions in the 4 cases involved in Eweida and Ors v UK  will be influential for a number of years. What is interesting is that where the European Court has agreed with the UK Courts it has often done so for other reasons and on balance even where the cases have gone against the Christians involved the legal position for religious rights is slightly better that it was previously. In particular the ECtHR has changed its previous stance that where an employee found their religious rights were infringed they should resign and get another job.

83.  Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.

The cases fall into two groups, Eweida and Chaplin which involved the right to wear a Christian Cross in work and Ladele and McFarlane which involved persons objecting to participation in work which involved endorsement of same sex relationships.  Eweida won her case the others lost theirs.  All claims were brought alleging breaches of Articles 9 (Freedom of Religion) and Article 14 (Freedom from Discrimination) of the European Convention on Human Rights

In the Eweida and Chaplin cases the UK courts had based their decisions against the Claimants in part on the basis that because the wearing of a Cross was not compulsory in Christianity its wearing was not a "manifestation" of religion for the purposes of Article 9.1 and so Courts did not have to consider whether any restrictions were "necessary in a democratic society" as required by 9.2.  The ECtHR clearly rejected this approach

Para 82.  In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question

89.  the Court considers that Ms Eweida’s behaviour was a manifestation of her religious belief, in the form of worship, practice and observance, and as such attracted the protection of Article 9.

97. the Court considers that [Ms Chaplin's] determination to wear the cross and chain at work was a manifestation of her religious belief and that the refusal by the health authority to allow her to remain in the nursing post while wearing the cross was an interference with her freedom to manifest her religion.

In the case of Eweida the ECtHR decided that the ban on her wearing a cross was not justified in a democratic society In the case of Chaplin who is a Nurse the ECtHR decided that the restriction related not to her wearing a cross as such but rather against her wearing a cross on a chain which could be justified on Health and Safety grounds because of the nature of her work.  This seems a fair balance to make and since the Chaplin decision relates only to wearing a cross on a chain rather than in some other way there is no issue of principle preventing the wearing of a cross by NHS or other workers.  

With Ladele and McFarlane there was a conflict between rights namely the right to manifest religion and the right not to be discriminated against and for that reason the Court held that how the balance was struck was a matter for the national authorities to decide under what is known as the "margin of appreciation"

105.  The Court recalls that in its case-law under Article 14 it has held that differences in treatment based on sexual orientation require particularly serious reasons by way of justification (see, for example, Karner v. Austria, no. 40016/98, § 37, ECHR 2003-IX; Smith and Grady, cited above, § 90; Schalk and Kopf v. Austria, no. 30141/04, § 97, ECHR 2010). It has also held that same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship, although since practice in this regard is still evolving across Europe, the Contracting States enjoy a wide margin of appreciation as to the way in which this is achieved within the domestic legal order
106.  The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights (see, for example, Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-I). In all the circumstances, the Court does not consider that the national authorities, that is the local authority employer which brought the disciplinary proceedings and also the domestic courts which rejected the applicant’s discrimination claim, exceeded the margin of appreciation available to them.

Therefore the decision does not prevent the UK or any other country giving individuals such as Lilian Ladele a right to conscientious objection to participating in same sex ceremonies etc but does state that it is up to individual countries whether they give such a right.

On the issue of conscientious objection there is a 


2. [Lilian Ladele's] case is not so much one of freedom of religious belief as one of freedom of conscience – that is, that no one should be forced to act against one’s conscience or be penalised for refusing to act against one’s conscience. Although freedom of religion and freedom of conscience are dealt with under the same Article of the Convention, there is a fundamental difference between the two which, in our view, has not been adequately made out in paras 79 to 88 of the judgment. Even Article 9 hints at this fundamental difference: whereas the word “conscience” features in 9.1, it is conspicuously absent in 9.2 Conscience – by which is meant moral conscience – is what enjoins a person at the appropriate moment to do good and to avoid evil. In essence it is a judgment of reason whereby a physical person recognises the moral quality of a concrete act that he is going to perform, is in the process of performing, or has already completed. This rational judgment on what is good and what is evil, although it may be nurtured by religious beliefs, is not necessarily so, and people with no particular religious beliefs or affiliations make such judgments constantly in their daily lives.

3.  We are of the view that once that a genuine and serious case of conscientious objection is established, the State is obliged to respect the individual’s freedom of conscience both positively (by taking reasonable and appropriate measures to protect the rights of the conscientious objector1) and negatively (by refraining from actions which punish the objector or discriminate against him or her). Freedom of conscience has in the past all too often been paid for in acts of heroism, whether at the hands of the Spanish Inquisition or of a Nazi firing squad. As the ECLJ observes, “It is in order to avoid that obeying one’s conscience must still require payment in heroism that the law now guarantees freedom of conscience.”

7.  Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal

It will be interesting to see if the case of Ladele is appealed since it raises real issue of principle which this dissenting judgement has highlighted and which deserves to be examined again. The decisions in the cases of Chaplin and McFarlane do not however raise these issues of principle and it may be sensible if they are not appealed.  With the case of Chaplin in particular any appeal raises the danger of the Appeal decision reversing or undermining the advantages for Christians obtained through the Eweida decision


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Unknown said...

I read once that ladelle was willing to do the paper work and issue the cp certificate, but did not wnt to conduct the ceremony bit? Assuming this is true, this is same as in France & USA - just issue of licence, no ceremony required. I fail to see why the state shud compel ceremonial activity, especially if not in your original contract? Think of other ceremonial opt-outs: council prayers/anthems, school assemblies, rememberance day observations, female licence-officers going into lap clubs (cf art.8), police officers protecting Papal visits or Orange marches, female school staff refusing to assist with class RE visits to mosque (headcovering issues), oaths (are weddings/cps glorified oaths?) etc... If this long list of ceremonial conscience claims are allowed, then why the hostility to ladelle?

Unknown said...

I hope you do not mind, but I saw this post by Strasbourg Observers on 24th regarding Ladelle & "serious weight reasons", and think the blogs other readers would be interested: http://strasbourgobservers.com/2013/01/23/eweida-part-ii-the-margin-of-appreciation-defeats-and-silences-all/