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]
Practical Conclusions
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]
It concluded:
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.
Overall conclusion
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.
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