Away from the drama of the reshuffle, the European Court of Human Rights is hearing the pleas of four British Christians, who are arguing that UK law inadequately protects their right to manifest their faith under articles 9 and 14 of the European Convention on Human Rights.
The applicants’ cases are well known. Nadia Eweida, a British Airways employee, was asked to remove or conceal the crucifix that she wore around her neck in line with new uniform prescriptions. She did so on several occasions, but eventually refused and was sent home. She lost her workplace discrimination claims on grounds that she had breached her employer’s regulations without good cause. The government’s legal position stated that Eweida did not have an absolute right to wear her crucifix because the symbol is not a requirement of faith. Another claimant, Shirley Chaplin, an NHS nurse of 30 years’ service, was removed to a desk job when she refused to remove the crucifix around her neck. Her discrimination claim was rejected on the basis of ruling in the Eweida case.
The two other cases are different. Lillian Ladele, a registrar of deaths, births and marriages, objected to officiating at civil partnerships. Her employer, Islington Borough Council, refused to accommodate her. She won a discrimination claim, which was then overturned at a subsequent Employment Appeal Tribunal on grounds that she was in breach of the council’s equality policy, which was based on the Equality Act (Sexual Orientation) Regulations 2007. The Court of Appeal then upheld the EAT’s judgment. Meanwhile, Gary Macfarlane, a Relate marriage and relationship counsellor, was sacked for refusing to discuss sexual matters with same sex couples, although he was willing to work with same sex couples on issues other than sex. His discrimination claims were thrown out on grounds that he had breached Relate’s equality guidelines.
The cases received plenty of media attention, but the stance of the Equality and Human Rights Commission throughout this affair has not. Last summer, the EHRC announced that it was seeking leave to intervene in the ECHR on the side of the four applicants. It released a statement saying:
'If given leave to intervene, the Commission will argue that the way existing human rights and equality law has been interpreted by judges is insufficient to protect freedom of religion or belief.
'It will say that the courts have set the bar too high for someone to prove that they have been discriminated against because of their religion or belief; and that it is possible to accommodate expression of religion alongside the rights of people who are not religious and the needs of businesses.'
It added that these decisions had left a ‘confusing and contradictory case law’ that made it ‘difficult for employers or service providers to know what they should be doing to protect people from religion or belief based discrimination.’
The commission proposed extending ‘reasonable accommodation’ beyond its existing limits (which relate to workplace provisions for the disabled) so that the beliefs of employees and the rights of others would be respected. This is best explained and considered by Aidan O’Neill QC on One Crown Office Row’s human rights blog. Essentially, it was suggested that employers might rework schedules and rotas to free those who did not want to officiate at certain events. This equitable solution would apply to people of all faiths and none, giving employees greater choice in the workplace.
However, the proposed intervention caused notable controversy. Stonewall said it was ‘deeply disturbed’ by the move, which would see the EHRC support people, and state employees in particular, who refused to service gay couples, which might set a precedent where ‘Muslims may start refusing to treat alcoholics in hospitals or social workers might decline to assist single mothers.’ Some trade unions made similar objections during an EHRC consultation. And secular organisations were also opposed, arguing that the EHRC was giving disproportionate support to religious people at the expense of the non-religious.
In the face of this criticism, the EHRC clarified its position: insisting that it was not privileging one set of rights above another, and that it was merely trying to avoid ‘protracted, costly, complex legal proceedings that irretrievably damage relations between the parties' with a solution rooted in existing law. But this did not silence objections. Eventually, the EHRC announced that it would support the UK courts’ decisions in the Macfarlane and Ladele cases. The government also said that it would not extend ‘reasonable accommodation’ without due consideration of how it might create new regulatory burdens for businesses and other organisations.
You’ll notice that all of this complexity grows out of existing British and European law, which reaches back over centuries of legislation and the related body of case law. One can begin to see the theoretical benefits of a supra-national court to make final decisions where the British parliament and the British courts have failed.
But, of course, nothing is that simple. The ECHR is subject to the principle of ‘margin of appreciation’. This doctrine allows member states some leniency when applying laws so that their cultural history is respected. Britain, very obviously, has a religious past; and you might argue that the continued establishment of the Church of England and separate acts guarding religious freedom and toleration gives it a religious present. David Cameron has long pledged support to those who want to manifest their faith at work by wearing a cross, and has said he will legislate in their favour if necessary; a further indication that private religion remains a public concern.
On the other hand, public faith has declined in Britain and secular notions of equality have been introduced by legislation that appears to enjoy public support. The ECHR recognises secularism as a distinct philosophy under which a state can operate. Is Britain, to all intents and purposes, a secular country? And, if so, should that secularism take precedence over the customs observed by religious minorities? There are other questions for the court to consider: such as, are religious symbols active or passive? (As this post by a jurisprudence expert makes clear, the court itself has provided contradictory answers to this question, although there is perhaps a need to differentiate between religious and cultural symbols.)
These questions are primarily the business of the British people rather than foreign judges. In view of that, it is objectionable that the court only gave the EHRC 3 weeks to consult the public on these matters at the end of last summer. And it is regrettable that only 500 responses were received. This momentous, historic subject ought to be the focus of a debate that goes far beyond the obvious stakeholders.