Today a Chamber of the Fourth Section of the European Court of Human Rights released its judgment in the much-anticipated cluster of cases, Eweida and Others v. the United Kingdom. These cases courted controversy in the domestic courts due to what many on both sides of the debate saw as an important and apparently irresoluble conflict between the rights to manifest religious belief and the rights to non-discrimination held by, in these cases, homosexual individuals. Put into legal terms: the cases were about the alleged conflict between the rights of the applicants under Articles 9 and 14 of the Convention and the rights of others (broadly speaking – though never explicitly defined as – falling under Articles 8 and 14).
Four applicants meant four distinct groups of facts, although a number of common threads.
Ms Eweida was a British Airways check-in attendant. Her case was that the United Kingdom failed in its positive duty to uphold her rights under Article 9 in that the company would not allow her to wear a visible cross at work. Prior to her decision that her faith required her to wear a visible cross, Ms Eweida had quite happily worn a concealed cross. There had been no similar issues with other employees and BA did make allowance for the wearing of the kara and turbans in the case of Sikh employees. When she refused to remove or conceal the cross she was placed on unpaid leave. Later BA offered to redeploy her to a part of the organisation where she could wear a cross on top of her clothes and undertook to review its uniform code. However, before this could take place, Ms Eweida returned to work wearing a visible cross. Eventually BA did change its uniform policy.
Ms Chaplin was a geriatrics nurse at an NHS hospital. She also had worn a cross without problems for many years. Following a uniform change, which altered the necklines of the clothing that nurses wore and rendered the cross visible and accessible, she was prohibited from wearing it by management. She persisted in wearing the cross and was moved to non-nursing, administrative duties. Some compromise solutions were proposed but ultimately rejected by her. A grievance was not upheld for the reason that clinical safety – principally the risk that disturbed patients might grab the cross – required its removal.
Ms Ladele was a marriage registrar with Islington Borough Council, a self-consciously progressive and equal opportunities employer. She had originally begun work there before the Civil Partnerships Act was passed in 2004. She did not want to officiate at civil partnerships due to her faith. This caused a breakdown in relationships within the organisation. It also led to rota difficulties and placed a burden on other employees. A disciplinary process was initiated and she was subsequently dismissed. The decision was apparently motivated by two reasons: one was to ensure non-discriminatory access to service and the other was to uphold the reputation and image of the Council as a public sector equal opportunities employer.
Mr McFarlane was a relationship and psychosexual counsellor with Relate. Relate had in place equal opportunities and professional ethics policies. Following training on psychosexual counselling, he made clear that he did not want to provide such counselling to homosexual couples (although he would have continued to provide relationship counselling) on the basis of his religious beliefs. He, too, was dismissed following a disciplinary process.
Out of these four stories arise two separate issues. First is the issue of whether employer uniform codes can ban the wearing of religious clothing (this is Eweida and Chaplin). Second is the issue of whether an individual working within a larger organisation – whether public or private (the distinction is not so important given the Court’s stance on “positive” and “negative” duties) – is entitled to refuse to serve individuals on the basis of their sexual orientation (this is Ladele and McFarlane).
The interest created in the case can be gauged in the number of interested parties who submitted comments. In total twelve sets of comments were received and summarised in the judgment – a remarkable number even by the standards of some of the Court’s most controversial past rulings. Among them were comments from Liberty, the Equality and Human Rights Commission, the National Secular Society and a number of others including Lord Carey, the former Archbishop of Canterbury.
A clear division of opinion emerged between the interveners. On one side were Liberty and the National Secular Society who argued for an approach that refused to tolerate direct discrimination on the explicit basis of sexual orientation. Their approach very much required the important principle of non-discrimination on the protected ground of sexual orientation to be accommodated by any religious rights. Liberty went so far as to suggest – arguably somewhat illiberally – that the Court might find it appropriate to apply Article 17, which denies the right to individuals to engage in activity that “aim[s] at the destruction” of any right (more information on Article 17 available here). On the other side were a number of bodies – including, notably, the Equality and Human Rights Commission (see this post for some background) – that argued for a principle of “reasonable accommodation” similar to that which exists under disability discrimination legislation.
What did the Court make of all this? Well, its decision was relatively predictable with one possible exception. No violations were found for any applicant except Ms Eweida. Even in Ms Eweida’s case the Court did not consider that the violation required an award of any significant sum in damages.
With Ms Eweida the Court decided that BA’s desire to protect its corporate image was not sufficiently important to displace her right to manifest her religion through wearing a visible cross. This relatively perfunctory analysis is criticised in the partially dissenting opinion of Judges Bratza and David Thór Björgvinsson as failing to do justice to the more nuanced reasoning of the Court of Appeal. The dissent highlights the lengths to which BA went to try to resolve the problem, culminating in a change to the uniform policy following consultation. The distinction drawn by the Court with Ms Chaplin’s case derived from the type of reasons given by the hospital for the uniform code. In her case, her uniform – and the ways in which it could be augmented – was dictated by clinical necessity: in the Court’s view, a somewhat firmer reason for refusal.
The remainder of the Court’s reasoning demonstrates a reluctance to step out from behind what it recognises to be an especially broad margin of appreciation. In fact the decision largely ducks what, for many, was most controversial: the questions of proportionality and “reasonable accommodation”.
This is broadly understandable. Consider, for instance, the level of interest, comment and disagreement. For example, the Court could have found that the goal of non-discriminatory service provision could be achieved by allowing Ms Ladele not to register civil partnerships. She was, after all, only one individual within a bigger organisation with, presumably, a number of other registrars. This, it could have found, would have been a “reasonable accommodation”. The proposal could well be moulded in a way similar to the conscientious objection exception contained in section 4 of the Abortion Act 1967. In fact this was the preferred proposal of Judges Vučinić and De Gaetano, who in a partial dissent placed emphasis on a perceived difference between the dictates of religion and of conscience (though their reference to the “obsessive political correctness” of Islington Borough Council does not help their analysis). But, that said, the Court would then have laid itself open to the criticism that it risked normalising what many would agree to be out-dated and discriminatory attitudes – attitudes that should be changed rather than protected by the state. The dilemma was enunciated nicely by Sachs J giving the leading judgment of the South African Constitutional Court in Christian Education South Africa v. Minister of Education, 2000 (4) SA 757:
“The underlying problem in any open and democratic society based on human dignity, equality and freedom in which conscientious and religious freedom has to be regarded with appropriate seriousness, is how far such democracy can and must go in allowing members of religious communities to define for themselves which laws they will obey and which not. Such a society can cohere only if all its participants accept that certain basic norms and standards are binding.”
The upshot is that the Court found the reasons given by Islington Borough Council and Relate to be adequate given the wide margin.
Nevertheless the Court did make at least two improvements or clarifications to its case-law. First, at paragraph 82, the Court accepts that a manifestation of religious belief for the purposes of Article 9 need not be “mandated” by the religion. The question is whether the activity is “intimately linked” to the religion. Next, at paragraph 83, the judgment discusses when an “interference” with the right to manifest religious belief will be found. The judgment rejects the analysis that accepting a job represents a voluntary acceptance of any limitations imposed by that job. Similarly, the Court rejected in part the view of the National Secular Society that the “freedom to resign is the ultimate guarantee of freedom of conscience”. Instead the Court emphasised that an allegedly voluntary acceptance of such a limitation would only be considered at the justification stage. This aspect of the judgment is a useful clarification that recognises both the importance and reality of work in many peoples’ lives. It also appears to explicitly challenge the long-standing opinion of Lord Bingham expressed at paragraphs 23 and 24 of R (Begum) v. Headteacher and Governors of Denbigh High School  UKHL 15 (though the practical effect on Article 9 cases is likely to be small).
What next? The decision is a clear contender for referral to the Grand Chamber. And in this fraught area of law and policy it must be at least likely that the Grand Chamber would accept any such referral. Ultimately, the decision we have is a compromise borne out of the Court’s general – and understandable – reluctance to commit itself in difficult areas of social policy. The slight exception is the finding of a violation in Ms Eweida’s case. However that finding is likely to remain rather limited in scope given the Court’s approach in the linked case. That said, I remain to be convinced that this was the wrong decision reached in the wrong way.