Freedom of religion is very important
The fact of the matter is that the ECtHR correctly stated that freedom of religion, and the manifestation of religion by religious people, are hugely important human rights. Despite what the populist media often say about human rights, religious freedoms have explicit and privileged protection.
The Court recalls that, as enshrined in Article 9(of the European Convention on Human Rights - ECHR), freedom of thought, conscience and religion is one of the foundations of a democratic society... in its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. [Para 79, of the ECHR Decision]
Religious freedom is primarily a matter of individual thought and conscience. This aspect of the right set out in the first paragraph of Article 9 (of the Convention on Human Rights), to hold any religious belief and to change religious belief, is absolute and unqualified. However, as further set out in Article 9.1 freedom of religion also encompasses the freedom to manifest one’s belief, alone and in private but also to practice in community with others and in public. The manifestation of religious belief may take the form of worship, teaching, practice and observance...[Para. 80]
Manifestation of religion/belief can be limited
However, the court went on to say that in manifesting a religious belief this may have consequences for others and may impinge on the rights and freedoms of others – therefore in a tolerant, plural, democratic society the right to manifest belief may be restricted by the state subject to rigorous legal scrutiny of such restrictions by the Courts in each country.
...Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9.2.... (this) provides that any limitation placed on a person’s freedom to manifest religion or belief must be proscribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.[Para. 80, continued]
This amounts to a common-sense recognition that doing things (as opposed to just thinking about them or believing in them) can inevitably affect others – my “right” to build an extension to my house may direct affect the “rights” of my neighbour – hence there may well be some restrictions on what I can actually do. As with building things, so with manifesting one’s religious beliefs. But actually religious freedom (i.e. the thinking/believing bit) is given a special status that makes it absolute; the only restriction is on the manifestation, and even then only in quite exceptional circumstances should restrictions be placed on it.
What is “manifestation” of religion or belief?
So what does manifestation of religious belief mean? We have a helpful definition in the decision:
Even where the belief in question attains the required level of cogency and importance, it cannot be said that every act which in some way inspired, motivated or influenced by it constitutes a manifestation of the belief. Thus for example acts of omission which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9.1.
In order to count as a “manifestation” within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in generally recognised form. However, the manifestation ... is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. 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.[Para. 82]
Protecting the rights and freedoms of others
The protection given to manifesting a religion or belief is seriously constrained by the need to protect the rights and freedoms of others, which includes Article 14 rights not be discriminated against. This includes discrimination on the grounds of sexual orientation or civil partnership.
The Court recalls that in its case-law under article 14 it has held that differences of treatment based on sexual orientation require particularly serious reasons by way of justification...It has also held that same-sex couples are in a relevant similar situation to different sex couples as regards their need for legal recognition and protection of their relationship...”[Para. 105]
Historically of course some (often extreme and/or unrepresentative) faith/belief groups have always justified and argued for the removal or denial of the rights and freedoms of others (or for special privileges or advantages for their group) as opposed to those of other faiths or beliefs (or even others within the same faith/belief tradition), ethnic/national/racial minorities, disabled people, those of another gender/sexual orientation, etc. It is a fundamental human rights principle that the rights and freedoms of one group to manifest their faith/belief cannot and should not be to the detriment of others.
If the particular manifestation of a religion or belief is detrimental to other groups (e.g. discriminatory towards them) this is therefore not an “equality conflict” between the two groups, but a conflict between the particularly manifestation of that religion or belief and core human rights principles. Additionally I would submit that a human rights framework is a package that all ultimately benefit from and sign up to in a democratic, diverse, and respectful society.
Right to manifest religion or belief is not lost if changing job is an option
It has been argued in the past (and there is some previous ECtHR cases that endorse this view) that where restriction are placed by, for example, employers on the manifestation of religion, if the adherent can resign from the situation and finding new employment there is not an infringement of their Convention rights to manifest.
Thankfully this decision reverses/changes this approach:
Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of 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. [Para.83]
Five very important conclusions arise at this point from the decision:
1. Religious (and other) belief systems are very important in a democratic society and restrictions on the right to hold such beliefs (through persecution or discrimination) breaches fundamental human rights.
2. The manifestation of religious (or other beliefs) is also very important and should not be infringed upon unless the rights and freedoms of others are affected. There must be legal scrutiny when such rights are infringed or restricted. There may be a high degree of subsidiarity or “margin of appreciation” to national courts (as opposed to the ECtHR itself) in making such decisions.
3. The “Rights and freedoms of others” includes the rights of Gay people or those in civil partnerships not to be discriminated against.
4. The wearing of a cross, whilst not mandated within Christianity, is nevertheless a manifestation of that faith (NOTE: as may the wearing of Hijab or Niqab for Muslims; or being a vegetarian for Hindus and Buddhists).
5. It should not be expected, if restrictions are placed on manifestation of religion or belief (e.g. by employers for business reasons), that the person affected has no rights if they can change their job. Instead this issue should only be part of an evaluation (balancing act) on whether or not the restriction itself is justifiable/proportionate in the circumstances and bearing in mind the issues above.
Court rejects 3 out of 4 applications – but supports manifestation of religion when there is no threat to the rights and freedoms of others
Given the above conclusions arising from the decision, it is not really surprising that the court found against the applicants in three of the four cases (Chaplin, Ladele and McFarlane) but in favour of Eweida.
Ms Eweida was successful in her case for one simple (and probably correct) reason: the ECtHR believed that the UK court had placed too much weight in favour of the business argument against the wearing of a cross, as opposed to the very important right for Ms Eweida to manifest her religious belief by so doing. They believed such a restriction was not justified to protect the rights and freedoms of others, as no other person had really suffered any detriment.
The Court considers that the refusal by British Airways ...to allow the applicant to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion.[Para 91]
On one side of the scale was Ms Eweida’s desire to manifest her religious belief...On the other side of the scales was the employers wish to protect a certain corporate image. The Court considers that while this aim is undoubtedly legitimate, the domestic (UK) courts accorded too much weight. [Para 94]
The Court therefore concludes that, in these circumstances where there is no evidence of any real encroachment on the interests of others, the domestic (UK) authorities failed sufficiently to protect the first applicant’s (Ms Eweida’s) right to manifest her religion... [Para. 95]
However for Ms Chaplin, which similarly involved wearing a cross at work, the case was determined on a simple alternative finding of fact to that of Eweida: that the UK courts had properly considered whether the restriction on her wearing a cross (which they confirmed was a legitimate manifestation of her Christian belief) was nonetheless justified in a democratic society in the context of protecting the rights and freedoms of others.
...the reasons for asking her to remove the cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied to Eweida. Moreover, this is a field where the domestic (UK) authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence. [Para. 99]
For Ladele and McFarlane the ECtHR accepted both held strong religious views about marriage and same sex relationships/unions based on their own interpretation of Christian beliefs and that these beliefs resulted in them both being dismissed from their jobs. They had a right to hold their beliefs, but not to manifest them at work in the way they wished. The Court accepted that their employers had the right to dismiss them in the context of protecting the rights and freedoms of others, particularly in ensuring that the services they provided to the public were free from unlawful discrimination – as in both cases the applicants had refused to undertake work that involved services to Gay people. In the case of Ladele this was as a local government registrar officiating at Civil Ceremonies and in McFarlane’s case as a Relate counsellor not wishing to provide psycho-sexual counselling to Gay couples on an equal basis as heterosexual couples.
In respect of Ladele, the ECtHR referred approvingly to the decision of the UK Court of Appeal’s decision in the following terms:
The (UK) Court of Appeal held in this case that the aim pursued by the local authority was to provide a service which was not merely effective in terms of practicality and efficiency, but also one which complied with the overarching policy of being an “employer and public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a ways which does not discriminate against others”. [Para. 105]
The Court generally allows the national authorities a wide margin of appreciation when it comes to striking a balance between competing Convention rights... In all the circumstances the Court does not consider that the national (UK) authorities, that is the local authority employer... exceeded the margin of appreciation available to them. [Para 106]
In a rather less sympathetic judgement than for Ladele, the ECtHR came to the same conclusions. But because Mr. McFarlene knowingly started a job where there was a direct conflict between the duties required and his own Christian beliefs, the Court said this was a legitimate matter to “be weighed when assessing whether a fair balance was struck” [Para 109]between his rights to manifest his religion and the rights of his employers to protect the rights and freedoms of others and to not discriminate against Gay people.
These four cases are extremely important not only for the people of the UK, but across the whole of Europe. The decisions in the end were not surprising, but they essential re-affirmed human rights principles in a political context where some religious groups are seeking to unwind the rights that have been fought for over many decades for Gay people (and other groups) and/or have sought to provide protection for people who would wish to discriminate against others justified by their religious convictions (some might say “bigotry”).
The outcome to these cases also provides relatively clear guidance for employers: if an employee wishes to reasonably manifest their religious or other belief, this should be allowed unless it impinges on the rights and freedoms of others or there are some other very, very, good reasons to justify interfering with what is an important human right.
The ECtHR decision in these cases:
· Confirmed human rights protection for all groups (including religious groups) from intolerant manifestation of religious or other ideas and beliefs that attack or undermine the rights and freedoms of others.
· Reinforced the importance of human rights principles within our diverse societies -where there has to be “give and take” if we are all to live together peacefully.
· Emphasised that the reasonable manifestation of religious or other beliefs should be respected and tolerated where they do not impinge on the rights and freedoms of others and cannot be justified.