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 
JOINT PARTLY DISSENTING OPINION OF JUDGES VUCINIC AND DE GAETANO which is well worth reading.

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

Mba v Merton Council - Christians and Working on Sunday

The Employment Appeals Tribunal decision in the case of  Mba v London Borough Of Merton [2012] UKEAT 0332_12_1312  has been published and makes interesting but worrying reading.  In my view the ultimate decision in the case namely that the Claimant Ms Mba was not unlawfully discriminated against is correct but the reasoning of the EAT is extremely flawed on a crucial aspect of the case namely the attitude of Christians generally to working on a Sunday and the specific attitude of Ms Mba.

 Prior to the issuing of the written judgment the decision had been reported in the Press as meaning that "Christians Have no Right to Refuse to Work on Sunday" which is very definately NOT what the judgment says.  Indeed at para 3 of his judgment Mr Justice Langstaff says

"We should make it clear at the outset of this Judgment to anyone who expects the conclusion to amount either to a ringing endorsement of an individual’s right not to be required to work on a Sunday on the one hand, or an employer’s freedom to require it on the other, that they will both be disappointed.  No such broad general issue arises.  The questions raised must be determined in the specific circumstances of this particular case alone."
 
also in para 42 the EAT says

We do not think it was well expressed to say, as the Tribunal here said at 88(iii), that the belief that Sunday should be a day of rest was not a core component of the Christian religion. If that was all that was said, and if there had been no wider context in which to read it, to express matters in that way would have been capable of being offensive. It would have placed the Court where it should not be, in the position of judging the tenets of faith (see Williamson), and it would have been a misdirection of law.However, we do not think it is what the Tribunal was saying

The facts of the case are therefore significant.  In 2007 the Claimant Ms Mba was recruited to work at a registered children’s home which provided short residential breaks for children with serious disabilities and complex care needs, including such as challenging behaviour, medical needs, feeding difficulties and the like. 

The home, not surprisingly,  was open 7 days a week, 24 hours a day.  Staff worked in 3 shifts: morning, afternoon and night, covering the 24 hours with at least 3 members of staff  on duty at any  time.  Rotas for work were organised over a three week period and staff work two of the three weekends in each rota: that is, each person worked four weekend days every three weeks.  Bank and agency staff were employed but the cost to the employer for Agency staff to work weekends, rather than fulltime staff, was higher than it was for weekdays.

When the Claimant was offered the job she understood that a promise had been made to her that she need not work Sunday shifts.  Management thought that it had said it was not possible to alter the rota arrangements we have described, but recognised that it was likely to be possible that the rota could be worked so that the Claimant could work every Saturday and have every Sunday as a day off.  This fell short of a promise never to require the Claimant to work on Sunday - but it was an offer to take reasonable steps to accommodate her wishes at least in the short term.  This was a clear disagreement on the fact but the Tribunal having heard the evidence accepted that the employer’s version was correct and that decision of fact had to be accepted by the EAT.  In any event this question of whether Mrs Mba had been given a promise or not was a simple contractual issue which raised no point regarding Discrimination. 

In 2009 difficulties arose over the rostering and ultimately, by 22 June 2009,  Management said that the Claimant would be scheduled to work two weekends in three in accordance with the normal rota with effect from 13 July 2009.  Mrs Mba did not attend work on the Sundays she was rostered and Disciplinary action followed, which included a final written warning in early 2010.  An appeal against that was rejected on 25 May 2010.  Five days later the Claimant resigned.  It was noted by the EAT that there was never any question of the quality of the Claimant’s work nor her personal integrity.  Having resigned she brought a claim alleging "indirect" religious discrimination.

On the facts of her employment I have to say that I cannot see that there could be any question of Mrs Mba ever winning her case.  The Children in the home had to be fed and cared for on a Sunday just as much as on any other day and personally I would see that as performing a Christian act however my personal view on the nature of a Christians duty in this situation is not the same as Ms Mba's view and the mistake the EAT made was to take account the views of Christians such as  in balance against the views of Christians such as Ms Mba.

In the case the Employment Tribunal and the EAT had considered a witness statement that had been put in on behalf of Ms Mba by Bishop Nazir Ali which said.

“Some Christians will not work on the Sabbath (except for mercies), others may work only in an emergency.”

In deciding allegations of Indirect Discrimination, as occurred in this case, a Tribunal is supposed to be satisfied that a "group" of people are affected by the alleged Discriminatory practice and the evidence from Bishop Nazir Ali did this by stating that "some Christians will not work on the Sabbath".  The EAT however turned this around by deciding that because  "some Christians will work on the Sabbath" that meant that because only a minority of Christians would refuse to work therefore it was permissible to require Christians to work because only a minority of them would be affected.

In this respect the EAT seriously misunderstood discrimination law.  The requirement that no Christian could be guaranteed to have Sunday off affected those Christians such as Mrs Mba who were not willing to work on the Sabbath and that should have been the only relevant issue for the EAT.  Once it had decided that the rules of the Employer did affect that group of Christians then it should have gone on to decide whether the rule was justified which, on the facts of the case I am sure it was.  But they should not have tried to side step the issue by deciding that because only a minority of Christians refuse to work on a Sunday that of itself made the rule justifiable.

The legal route taken by the EAT is extremely problematic to all areas of Religious Discrimination, could Hijabs be banned because only a minority of Muslim women wear them or Sikh Turbans ?  On the basis of this decision the answer could be yes but I would be very surprised if that is how the decision is applied in practice. 

A Conversation with an Abortion Provider - A thought for Christmas

 

This Blog is now closing down until the New Year and I finish with a personal reflection.

The Christmas  season begins with the Annunciation and ends with the birth of Christ but in between is an important moment when Mary goes to visit her, also pregnant, cousin Elizabeth who makes the memorable reply to Mary

"when the sound of your greeting came to my ears, the baby in my womb leaped for joy."

a very specific affirmation of the life of the unborn which is commemorated in the Icon above which I first encountered  when I joined the 2011 March for Life in Washington DC. 

So it is worth remembering that in the year since Christmas 2011 and Christmas 2012 some 200,000 babies will have been legally killed in Britain through Abortion, that means over 500 babies killed every single day.

During 2012 I have been involved in defending Health workers who decline to work in Abortion wards because they want to save life not destroy life.  I was involved in defending members of a pro-life prayer vigil who were being legally threatened by Abortion provider "Marie Stopes International"  and I am pleased that when their bullying and attempted intimidation was challenged Marie Stopes backed down.

As a follow on from that I had an email exchange with a staff member of another Abortion provider BPAS when I questioned some of the statistics being quoted by BPAS.  The exchange was initially jovial as shown below (out of respect for the BPAS lady I have anonymised her replies)

"From:  BPAS
To: Neil Addison
Sent: Tuesday, October 16, 2012 4:48 PM
Subject: RE: Statistics Quoted on BPAS Advertisement

Dear Neil

will be very interested to see how your complaint to the ASA on this matter is resolved. Do keep me informed.

Best wishes

BPAS 

From: "Neil Addison"
To: BPAS
Subject: Re: Statistics Quoted on BPAS Advertisement
Date: 16 October 2012 16:29

Dear  BPAS

Who said I was going to complain to the ASA?  I'm not Marie Stopes International

Best Wishes

Neil Addison"

 
but that jovial tone changed a bit later on as we continued to correspond

 From: BPAS
To: Neil Addison
Sent: Friday, October 19, 2012 6:29 PM
Subject: Re: Statistics Quoted on BPAS Advertisement

Thank you for your email, Neil.

I suppose what is clear is that your concerns about the campaign are not based on what is statistically accurate or not but on your own moral reservations about abortion. It may be helpful if you were able to separate the two.

And yes, I would describe a woman who has delivered a dead baby whom she has planned and prepared for as a mother, in the same way I would a mother whose child has died at five or fifty. I am glad you do too.

The point really is that many people opposed to abortion appear to labour under the misapprehension that women end pregnancies because they have no idea of the value of what they are carrying and no understanding of what it means to be a mother. On the contrary, it is precisely because they understand what it means to be a mother and the value of life that they decide abortion is what is morally right for them.

Best wishes
 

BPAS 

From: "Neil Addison"
To: BPAS
Subject: Re: Statistics Quoted on BPAS Advertisement
Date: 19 October 2012 19:26

Dear BPAS

I am sorry we suddenly seem to be disagreeing however I just do not understand your point. My own views on the morality or otherwise of Abortion cannot affect a consideration of the accuracy or otherwise of the Statistics quoted by BPAS in its advert.

Truth is important so whether the statistics BPAS quote are accurate or not is important, after all if BPAS considers the claim that one in three women will have an Abortion important enough to quote in an advert then it important enough to test the claim and I merely wished to establish how accurate the figures were.  I appreciate your honesty in answering my questions as promptly and as fully as you have and as I have indicated I will examine the evidence you and others have provided, I cannot change the figures I can only examine them to see if they support the statistic quoted and if they do then so be it, the truth is whatever it is.

Your separate point about women who have abortions
"it is precisely because they understand what it means to be a mother and the value of life that they decide abortion is what is morally right for them."
is something I find logically unsustainable. The idea that any person can decide something is "morally right for them" is a illogical fallacy since any person can decide that anything whether Abortion, Fraud, Paedophilia or Drink Driving is "morally right for them" but that does not make these actions morally right.

To say that a decision is morally right because an individual has decided that the decision is "morally right for them" is to distort the concept of morality and to turn it into a simple euphemism for personal convenience.

Best Wishes

Neil Addison"

I never received a reply to that last email but I often think about the lady I was corresponding with and what she said. It makes me profoundly sad to think of her and the others involved in this business of killing.I do not believe they are bad or evil people but they are involved in something profoundly wrong and profoundly evil.

Church Volunteers and Employees 2

The Supreme Court in X v Mid Sussex Citizens Advice Bureau [2012] UKSC 59 has agreed with the earlier Court of Appeal decision [2011] EWCA Civ 28 .and the Employment Appeal Tribunal decision [2009] UKEAT 0220_08_3010

All Courts have rejected the suggestion that "Volunteers" of a Charity were covered by the Anti-Discrimination provisions of the Equality Act 2010 (The case itself dealt with the provisions of EU Anti-Discrimination Directive but its findings would have affected the application of the 2010 Act)

The case involved a volunteer at a Citizens Advice Bureau and whether she was protected under the (now repealed) Disability Discrimination Act however it was common ground that the decision would involve all volunteers for any voluntary organisation and would apply to all types of Discrimination covered by the 2010 Act. What the Courts have decided is that the Directive, and hence the Act, only applies to employees and not volunteers.

This decision is of particular significance to all religious organisations because of the large number of volunteers that are always involved with churches, synagogues, mosques, gurdwaras temples etc. If the Equality Act had applied to volunteers then these organisations would have been faced with a potential bureaucratic nightmare as they would have to ensure that every volunteer post was filled in accordance with equality guidelines with the possibility of facing Tribunal claims from disaffected parishioners who felt that they had been overlooked for appointment to a voluntary post. The fact that the law does not apply to volunteers lifts this potential threat from all voluntary organisations and allows them to get on with their primary role

Catholic Care v Charity Commission (4)

The latest round in the legal saga of the Catholic Care Adoption Agency and the Charity Commission has been concluded in the Upper Tribunal decision released today.  

I have blogged about this case before on 3 June 2009 the 23 August 2010 and 26 April 2011 and there is little more to be said

What the Agency was trying to do was to change its objects so as to add the following
"The Charity shall only provide adoption services to heterosexuals and such services to heterosexuals shall only be provided in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church"

It argued that this would enable them to operate because of the exemption for Charities under Section 193 of the Equality Act 2010  which says

193(1)A person does not contravene this Act only by restricting the provision of benefits to persons who share a protected characteristic if—
(a)the person acts in pursuance of a charitable instrument, and
(b)the provision of the benefits is within subsection (2).
(2)The provision of benefits is within this subsection if it is—
(a)a proportionate means of achieving a legitimate aim, or
(b)for the purpose of preventing or compensating for a disadvantage linked to the protected characteristic.

In my view the drafting of this clause was alway fundamentally flawed and the application was foredoomed to failure because it was directly, explicitly and obviously discriminatory and it only dealt with adoption services. In my view the Charity should have applied to amend its constitution to read something like the following

"The Charity shall provide its services in accordance with the tenets of the Church. For the avoidance of doubt the Roman Catholic Bishop of Leeds from time to time shall be the arbiter of whether such services and the manner of their provision fall within the tenets of the Church."

Worryingly in its judgment despite spending a lot of time talking about the importance of any decision being based on evidence the Upper Tribunal in para 29 endorses the decision by the First Tier Tribunal to have regard to an unsolicited letter sent by the "Roman Catholic Caucus of the Lesbian and Gay Christian Movement" (whoever they are) even though the "Caucus" was not a party to the litigation and provided no facts to support its assertions.  

There are no new or startling points in the judgment though it is worth noting that the Hon Mr Justice Sales did reject, in paras 45 a suggestion by the Charity Commission that the views of the Catholic Church on Same Sex Adoption could be compared to racism

"In my opinion, donors motivated by respect for Catholic doctrine to have a preference to support adoption within a traditional family structure cannot be equated with racist bigots, as Ms Dixon sought to suggest. Such views have a legitimate place in a pluralist, tolerant and broadminded society," 

In para 44 the Judge said

"44.  It is very unlikely indeed that insistence by a donor who was a racist bigot that some benefit be conferred on children in need, but only if they are of a particular race, would be found to justify a body in providing that benefit to classes of person limited in that way. That would involve a gross intrusion upon the values which should be expected to be promoted in the public domain in accordance with the European Convention on Human Rights, which seeks to foster a democratic society marked by pluralism, tolerance and broadmindedness"

and I must say I am troubled by this attitude to Charity even though it is wrapped up in high minded prose.  Surely the very idea of Charity is the free giving by individuals and organisations to help others according to their decisions as to what causes they consider are worthy of support. If the Catholic Church (or any other organisation or individual) wants to spend its own money in any way it pleases to help others why should an unelected quango, or indeed an elected Government interfere ? If individuals want to give money to organisations that arrange adoption services only for heterosexuals, or only for homosexuals, or disabled people or black people or white people what right does the government, or the Courts have to interfere with that choice ?
 

On a sadder and more worrying point the Judge noted in para 47

47: The interest of promoting the traditional family on which the Charity relies has not been endorsed by the national authorities.

Lund v. Boissoin - Canadian "Hate Speech" case

An interesting Canadian decision Lund v. Boissoin, 2012 ABCA 300 (CanLII) in the Court of Appeal of Alberta brings (hopefully)  an end to a case involving Freedom of Expression on Homosexuality which has dragged on for 10 years. 

Back in 2002 Pastor Stephen Boissoin wrote a letter to his local newspaper The Red Deer Advocate (set out in para 4 of the Judgment) expressing his views on Homosexuality and his concerns over the increasing acceptance of Homosexuality in Canada and in particular in Canadian Schools.  A Dr. Darren Lund, who describes himself as a human rights educator and activist decided to set himself up as Prosecutor of Mr Boissoin and brought a complaint against him under section 3 of the Alberta Human Rights, Multiculturalism and Citizenship Act which states

3(1) No person shall publish, issue or display or cause to be published, issued or displayed before the public any statement, publication, notice, sign, symbol, emblem or other representation that
(a)        indicates discrimination or an intention to discriminate against a person or a class of persons, or
(b)        is likely to expose a person or a class of persons to hatred or contempt
because of the race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status of that person or class of persons.
(2)  Nothing in this section shall be deemed to interfere with the free expression of opinion on any subject.

The case was origninally brought before the Alberta Human Rights Commission  which is one of a number of Canadian quasi judicial bodies which have become notorious for their ignoring of basic principles of legal procedure or evidence.  In Lund v. Boissoin, 2007 AHRC 11 (CanLII) the claim was found proved and in Lund v. Boissoin, 2008 AHRC 6 (CanLII)  the commission made an extraordinarily wide ranging and draconian order as follows

a. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall cease publishing in newspapers, by email, on the radio, in public speeches, or on the internet, in future, disparaging remarks about gays and homosexuals.  Further, they shall not and are prohibited from making disparaging remarks in the future about Dr. Lund or Dr. Lund’s witnesses relating to their involvement in this complaint.  Further, all disparaging remarks versus homosexuals are directed to be removed from current web sites and publications of Mr. Boissoin and The Concerned Christian Coalition Inc.

b. That The Concerned Christian Coalition Inc. and Mr. Boissoin shall, in future, be restrained from committing the same or similar contraventions of the Act.

c. That Mr. Boissoin and The Concerned Christian Coalition Inc. provide Dr. Lund with a written apology for the article in the Red Deer Advocate which was the subject of this complaint.

d. That Mr. Boissoin and The Concerned Christian Coalition Inc. shall request the Red Deer Advocate publish a copy this Order in the Red Deer Advocate and that they request their written apology for the contravention of the Act be published in the Red Deer Advocate.

e.  That Mr. Boissoin and The Concerned Christian Coalition Inc. shall pay to Dr. Lund an award for damages, jointly and severally, in the amount of $5,000.00.

This decision was strongly overturned in Boissoin v. Lund, 2009 ABQB 592 (CanLII)  when the case finally got before a proper Court namely the Court of Queen’s Bench of Alberta and the Queens Bench decision has now been backed by the Court of Appeal decision

Appeals Court Justice Clifton O’Brien concurred with the Queens Bench decision that Boissoin’s letter “was not likely to expose homosexuals to hatred or contempt within the meaning of the Alberta statute.”

Notable points in the Appeal Court decision are

60: Language which is offensive and hurtful to others does not necessarily qualify as hateful or contemptuous speech.

62:  Context is of particular importance when considering complaints based on sexual orientation and the impact on freedom of expression.  Most often, underlying these complaints are issues relating to matters of morality. It is acceptable, in a democracy, for individuals to comment on the morality of another’s behaviour. For this reason there will be a relatively high degree of tolerance for the language used in debates about moral issues, subject, of course, to limitations.  Anything that limits debate on the morality of behaviour is an intrusion on the right to freedom of expression.

[64] I would add that moral issues often also relate to the freedom of religion – another fundamental right protected by the Charter. A moral statement arising out of religious conviction may, in some cases, be seen as the dissemination of religious belief – an aspect of freedom of religion. Dickson J., as he then was, underscored this point in R v Big M Drug Mart Ltd, 1985 CanLII 69 (SCC), [1985] 1 SCR 295 at 336, 18 DLR (4th) 321:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

The "Charter" referred to is the Canadion Charter of Rights and Freedoms  which is part of the Canadian Constitution Section 2 of which says

2 Everyone has the following fundamental freedoms:
(a)     freedom of conscience and religion;
(b)     freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication

Boissons Lawyer in Alberta Gerald Chipeur, Q.C. has been quoted as saying

“This was a watershed case, ...Very important, in terms of freedom of expression and religious liberty. Going forward, it will be extremely difficult, if not impossible, for religious or political debate to be found in breach of Alberta’s current human rights laws.”

“Christians and other people of faith should not be fined or jailed for expressing their political or religious beliefs. There is no place for thought control in a free and democratic society ....The tools of censorship should not be available to prohibit freedom of religious expression in Canada. The court rightly found that this type of religious speech is not ‘hate’ speech.”


Since the Canadian Charter is similarly worded to the European Convention on Human Rights this decision may also have relevance should any cases of a similar type be brought in Britain.  Fear of this type of time wasting gesture litigation was one of the main reasons why many people including myself opposed the idea of including Religious and Sexual Orientation Harassment within the Equality Act 2010 and I am glad we succeeded

Religious Persecution and a Right to Asylum in the European Union

A decision by the European Court of Justice (nb NOT the European Court of Human Rights) will have an impact on how applications for Refugee Status are considered in European Union Countries.

The case Bundesrepublik Deutschland v Y & Z [2012] EUECJ C-71/11  involved two Ahmadi Muslims who went to Germany from Pakistan and were threatened with deportation.  They appealed to the ECJ on the basis that the German Courts were wrongly applying European Council Directive  2004/83/EC which establishes a common definition of refugee status throughout the EU.  In Pakistan the Amhadi Muslim community suffers a considerable degree of Religious persecution including the fact that they are not allowed to call themselves Muslims or call their Mosques "Mosques".  

The German Courts originally decided that the two could be deported because they would still be able to have their beliefs the law merely prevented them publicly practicing their beliefs.  As the ECJ put it in para 42 of its decision

there could be deemed to be persecution relevant for the purposes of the right of asylum only where there was interference with the ‘core areas’ of religious freedom, but not where there were restrictions on the public practice of faith,

The ECJ disagreed with this approach and decided that a fear of religious persecution was well founded where (para 81)

it may reasonably be thought that, upon his return to his country of origin, he [the refugee] will engage in religious practices which will expose him to a real risk of persecution. In assessing an application for refugee status on an individual basis, those authorities [ie immigration authorities] cannot reasonably expect the applicant to abstain from those religious practices.

The point that merely being allowed to pray privately is not enough to prevent persecution is particularly interesting because it goes contrary to the arguments of the UK government in the 4 Religious Freedom cases currently before the European Court of Human Rights, the UK Government and indeed UK courts have taken the view that Religious practice is entirely private and perhaps this case may have some relevance in causing that view to be questioned. 

The logic of the ECJ decision is similar to that in a decision made by the UK Supreme Court in HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 31 - which related to Gay Asylum seekers from Iran.  The Supreme Court had held that Homosexuals had to be allowed to practice Homosexuality openly otherwise they were being persecuted and that logic should also be applied to the practice of a religion