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Tuesday, 15 January 2013

Eweida and others v United Kingdom Part II: what the court ruled

Note: I have slightly altered the intended structure of this article, having now seen the judgment.  In this part I will set out what the Court ruled, and in the third part will offer some comment and analysis.

General principles

The Court observed that, as enshrined in art 9, freedom of thought, conscience and religion was one of the foundations of a “democratic society” within the meaning of the Convention. In its religious dimension it was one of the most vital elements that went to make up the identity of believers and their conception of life, but it was also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society depended on it. Religious freedom was primarily a matter of individual thought and conscience. That aspect of the right set out in the first paragraph of art 9, to hold any religious belief and to change religion or belief, was absolute and unqualified.

However, as further set out in art 9(1), freedom of religion also encompassed 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 might take the form of worship, teaching, practice and observance. The right to freedom of thought, conscience and religion denoted views that attained a certain level of cogency, seriousness, cohesion and importance. Provided that was satisfied, the state’s duty of neutrality and impartiality was incompatible with any power on the state’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs were expressed. Even where the belief in question attained the required level of cogency and importance, it could not be said that every act which was in some way inspired, motivated or influenced by it constituted a ‘manifestation’ of the belief.

It was true that there was case-law which indicated that if a person was able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there was no interference with the right under art 9(1) and the limitation therefore did not have to be justified under art 9(2). In cases involving restrictions placed by employers on an employee’s ability to observe religious practice, the Commission had held in several decisions that the possibility of resigning from the job and changing employment meant that there was no interference with the employee’s religious freedom. The better approach was that, where an individual complained of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with that right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. This is an important point, to which I will return.  In the old days, as noted in the introduction, employees would simply be told to work elsewhere if they did not like the terms of their contract.  Nowadays employers will have to consider an "overall balance".  Continuing my fable about the beseiged employer Jack, he has just been deprived of a tidy solution that would have disposed of just about all of the problems he is facing. It may still be available in some cases, but it will no longer be as clear cut.

The Court rounded off its general observations by nothing that it left the states party to the Convention a certain margin of appreciation in deciding whether and to what extent an interference was necessary (see [79]-[84] of the judgment).

The individual cases

1. Mrs Eweida

The refusal by BA to allow Mrs Eweida to remain in her post while visibly wearing a cross amounted to an interference with her right to manifest her religion. Since the interference was not directly attributable to the state, it was necessary to examine whether in all the circumstances the state authorities had complied with their positive obligation under art 9 - in other words whether they should have interfered with a private bargain to engineer what they considered to be a socially desirable outcome.

On the facts, according to the majority of the Court, a fair balance had not been struck between Mrs Ewieda's desire to manifest her religion and BA’s desire to project a certain corporate image. While the latter was undoubtedly legitimate, it had been accorded too much weight by the domestic courts. Mrs Ewieda’s piece of jewellery was discreet and could not have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had had any negative effect on BA’s image. Also, since BA had subsequently changed its policy to allow crosses to be displayed, it could not argue that the impact of Mrs Eweida's wishes was significant (I interpolate that this looks rather as though BA shot itself in the foot by trying to be accommodating ...).

In all of those circumstances, where there was no evidence of any real encroachment on the interests of others, the Court concluded that the British authorities had failed to protect Mrs Eweida’s right to manifest her religion, in breach of the positive requirement of art 9 (see [93]-[95] of the judgment - note, Judges Bratza and Thor Bjorgvinsson dissented on this point). She was awarded the usual small sum on these occasions - the Court regards the primary result of its findings to be the fact of the breach itself and the resultant necessity for the state to remedy the breach, not the particular consequences for the litigants.

2. Mrs Chaplin
The reason for asking Mrs Chaplin to remove her cross, namely the protection of health and safety on a hospital ward, was inherently of a greater magnitude than that which applied in the case of Mrs Eweida. Moreover, that was a field in which the domestic authorities had to 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 had heard no evidence.

It followed that the measures complained of by Chaplin were not disproportionate and her application would be dismissed (see [99]-[101] of the judgment).

3. Mrs Ladele
The Court agreed with Mrs Ladele's contention that the local authority's requirement that all registrars be designated as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. It was therefore necessary to determine whether the policy pursued a legitimate aim and was proportionate.

Differences in treatment based on sexual orientation required particularly serious reasons by way of justification. Same-sex couples were in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their religion and protection of their relationship, although given that it was a developing area contracting states enjoyed a wide margin of appreciation in the way in which that might be achieved. Against that background, it was evident that the aim pursued by the authority was legitimate.

As to whether it was proportionate, the Court took account of the fact that the consequences for Mrs Ladele were serious: given the strength of her religious convictions, she felt no option other than to face disciplinary action. Nor had she waived any right to manifest her belief, given that civil partnerships did not exist at the time she started her employment. On the other hand, the local authority’s policy aimed to secure the rights of others which were also protected under the Convention, and the Court generally allowed national authorities a wide margin of appreciation when it came to striking a balance between competing Convention rights.

In all the circumstances, the national authorities in the form of the local authority had not exceeded the margin available to them (see [106] of the judgment - note, Judges Vucinic and de Gaetano dissented on this point).

4.  Mr McFarlane

The key factor in Mr McFarlane's case was that his employer’s action was intended to secure the implementation of its policy of providing a service without discrimination. It was a question of Mr McFarlane's right to exercise his beliefs, and the right of his employer's clients to receive services without discrimination.  The Court ruled that the domestic authorities benefitted from a wide margin of appreciation in deciding where to strike that balance between McFarlane’s right to manifest his religious belief and his employer’s interest in securing the rights of others. Not surprisingly, it held that in all the circumstances that that margin had not been exceeded in McFarlane’s case (see [109]-[110] of the judgment).

The result

Despite the headlines already appearing about the case the Court's ruling was a lot less controversial than it might have been.  Stronger stuff appears in the dissents, which I will consider in Part III of this article, which is concerned with comment and analysis.  In the meantime, I would note that for each of the individual cases the Court stressed the margin of appreciation to be given to the state - the very opposite of "Strasbourg telling us what to do" paranoia to which some of the papers are prone. 

That said, the point made earlier about depriving everyone of a neat and tidy solution by telling anyone whose rights have been breached to look for another job may have some significance.  There is a case for saying it would or should have applied in the reverse in Mrs Ladele's case, since civil partnerships did not exist when she started her employment - thus, the argument would run, the employer should have been told to lump it when it asked her to undertake duties which she considered fundamentally different from those to which she signed up. 

Then we have the irony already noted of BA in Mrs Eweida's case apparently coming unstuck at least partially because it was accommodating after the dispute had been raised. 

Some commentators have noted somewhat wryly that it is unlikely that any homosexuals would want their civil partnership presided over by someone with Mrs Ladele's views, nor their relationship counselling to have been provided by someone such as Mr McFarlane whose heart was clearly not in it.  But that falls into the category of "jury point" - a good soundbite - without giving us a compelling argument based on principle which might be used as general guidance for future cases.

As mentioned, in the third and final part of this article I will offer some comment and analysis.  I will leave this point by noting that my hypothetical employer Jack will be having second thoughts about taking on more staff at all, at least until his lawyers have had time to pore over the ECtHR's decision at more leisure.

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