Where the Strasbourg religious freedom judgement leaves the UK

The judgement handed down in January in four high-profile UK religious freedom cases by the European Court of Human Rights in Strasbourg has strengthened the freedom to manifest belief (Article 9). The judges disagreed with the UK courts in one key area: just because Christians are not required by their faith to wear a cross does not mean that wearing a cross is not a manifestation of belief which should be respected and accommodated as far as possible. In this sense, the media reports were right to focus on the victory in Strasbourg of Nadia Eweida, the British Airways employee.

Yet the judges offered little comfort to Christians working for public bodies who fear being squeezed out of their jobs as new sexual orthodoxies come to be more rigidly applied. Some have argued that the judges’ decisions actively increase the risk that those who dissent on the issue of same-sex marriage will not be free to voice and act on their convictions. In effect, Strasbourg has said that it is justified for the UK courts to weigh up different rights involved — the right of same-sex people not to be discriminated against; the right of conscientious objectors to manifest their convictions – but given the tendency of UK courts to emphasise the first, Christians, Muslims and others who believe, for example, that marriage can only be between a man and a woman, are not in a better place following the judgement.

The judges sought to balance competing rights in a pluralist society. As Joshua Rozenberg points out, this is always going to be a delicate business.

At the most basic level, the ruling shows that there is no easy way of balancing the rights of gay people and the rights of Christians: it all depends on the circumstances. In one sense, the balance is shifting towards Christians: as far as I can see, Eweida’s victory is the first defeat for the UK in a case brought under Article 9 of the human rights convention, the right to freedom of thought, conscience and religion.

This judgment also strengthens the protection provided by Article 9. In the past, the court has held that there was no breach of an employee’s religious freedom — from, say, having to work on the sabbath — if the worker could resign and find another job. That was something of a cop-out. Now, says the court, “the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate”. Judge Bratza, the court’s British former president, went further and said that earlier decisions to the contrary should not be followed.

So there will now be — hopefully — a greater weighing-in-the-balance of religious freedom rights. But that requires UK employers and courts to start from the premise that those rights are important — in the same way, for example, as freedom from discrimination is important. And that means  abandoning the confusion of pluralism and secularism evident, for example, in the Guardian‘s editorial on the judgement. Commenting on the verdict on Lilian Ladele, the Islington registrar who asked to be exempted from performing civil partnerships, the Guardian notes how

two dissenting judges said she deserved to keep her job, pointing out that as no gay couple was turned away on account of one registrar not getting involved, the tangible rights of an individual were being unduly sacrificed to a fuzzier notion of collective inclusion. If we were dealing with a priest being forced to bless a partnership he disapproved of, that objection would be decisive. But coming from an official in a strictly secular registry office, an institution that largely exists to marry the divorcees the churches don’t want, an avowed belief that marriage can only be lifelong union between a man and a woman is less weighty.

The implication here is that a ‘religious’ conviction should carry less weight in a ‘secular’ environment such as a registry office. But a registry office is not a ‘secular’ environment in the sense of being an officially atheist one. Britain is not a secular country in this (totalitarian) sense, and it is disquieting that a major newspaper should assume that it is. ‘Secular’ should be better understood as ‘pluralist’ — a realm in which differing views on contentious ethical subjects are accommodated as far as possible.

We are very far from that realm in the UK. The two dissenting judges mentioned by theGuardian are worth quoting, for they were obviously horrified by the culture of aggressive secularism prevalent in Islington Council. The judges — one from Montenegro, the other from Malta — found that “a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured ‘gay rights’ over fundamental human rights) eventually led to her dismissal.” Rather than practising the ‘tolerance and ‘dignity for all’ it preached, the Borough of Islington “pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal – something which … cannot be deemed necessary in a democratic society.”

The two ‘cross-wearing’ cases

Nadia Eweida, the British Airways employee, won an important victory. BA told Eweida that their need to main a professional image outweighed her desire to wear a cross over her uniform, which she said was an essential part of her Christian faith. The Court concluded in her case that

A fair balance had not been struck between, on the one side of the scales, her desire to manifest her religious belief and to be able to communicate that belief to others, and on the other side of the scales, her employer’s wish to project a certain corporate image.

So employers cannot tell employees to remove an item of religious clothing or jewellery – cross, turban, hijab – just in order to maintain staff uniformity. That’s a disproportionate infringement of the right to manifest faith.

Article 9 of the European Convention protects religious freedom while making clear that it is not absolute: the protection is qualified if “prescribed by law and necessary in a democratic society”. In the three other cases, the prescription and necessity of health and safety rules and public policy regarding equality and homosexuality were deemed by Strasbourg sufficient to qualify the appellants’ manifestations of their Christianity.

Chaplin, the NHS geriatric nurse in Devon, was, the Court thought, justifiably treated by her employers when she was banned from wearing the cross at work. Her employers said the dangling cross could be used to throttle her or a patient or be a source of infection, and thus she could not wear it on top of her uniform. The Court concluded that although her right to wear the cross “must weigh heavily in the balance”, the health and safety concerns were graver and “the hospital managers were better placed to made decisions about clinical safety than a court, particularly an international court”.

This is reasonable. The Court cannot intervene from afar and give an employee the right to decide what is and what is not hygienic: it is for an employer to set out a safe working environment for all, and Chaplin was offered compromises such as wearing her cross as a lapel pin. A good point to draw out is that the public wearing of a cross was recognised in Chaplin’s case, as in Eweida’s, to be a sincere and genuine action for a Christian. But unlike Eweida’s employer, Chaplin’s was not arbitrarily restricting that right but weighing it against other important considerations.

The two employment cases

Lillian Ladele and Gary McFarlane’s cases concerned their rights as Christians to request excusals from certain parts of their work; and it was these cases which have the greater implications for the future of Christians in employment.

In regard to Ladele, the civil marriage registrar for Islington Borough Council, the Court cited with approval the Court of Appeal’s view that it was not enough for Ladele to say no discrimination would be suffered by gay people because another registrar could conduct their partnership; it was legitimate for Islington to aim for an “overarching policy of being ‘an employer and a public authority wholly committed to the promotion of equal opportunities and to requiring all its employees to act in a way which does not discriminate against others”, and that “same-sex couples are in a relevantly similar situation to different-sex couples as regards their need for legal recognition and protection of their relationship”.

Given this aim, the Court considered whether it was proportionate to dismiss Ladele. It accepted her burden when she chose her conscientious objection over the threat of dismissal; and that she had not been employed to conduct civil partnerships (her contract was subsequently varied by her employer.)

The Court, in other words, implicitly took issue with the argument made by James Eadie QC, counsel for the UK, that Christians should leave their beliefs at home or get another job.

But the Court considered that it was within the ‘margin of appreciation’, or scope of discretion given to the UK and its tribunals, to decide that the principle of equality in favour of same-sex couples overrode the creation of any reasonable accommodation of her faith. The Court’s legal reasoning here is technical, but effectively it considered the human rights’ jurisprudence and concluded that this was a matter best left to member states.

In McFarlane’s case, the Court pointed out that he joined Relate knowing that it had an Equal Opportunities Policy which would compel him to participate in sex counselling for homosexual couples, and this trumped his religious freedom: for the Court, “the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing service without discrimination”.

On the plus side, then, Strasbourg has established that a wide category of beliefs and actions are genuine and sincere manifestations of Christian belief — a particularly important finding for Catholics given the propensity amongst English judges to look at the Bible literally when considering whether something is worthy of protection — and have thus strengthened the recognition of Article 9 in the UK courts.

But the balance is still in favour of secularism, and the Court failed to begin to carve out with this judgement a freedom of conscience doctrine for religious employees in a workplace increasingly fraught with moral dilemmas.

Hear Peter Smith discuss the judgement on BBC Radio Sheffield here.