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Briefing: the Christians taking their fight to Europe

4 September 2012

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.’

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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.

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Show comments
  • Madame Merle

    Presumably this article knows the difference between a crucifix and a cross, they are not the same thing.

    • Andrew Paul Shakespeare

      If you want to be pedantic about it, I suppose. I don’t think most people consider the difference a significant one. In the context of this particular issue — the wearing of Christian icons — does it matter whether it’s a cross, a crucifix or a fish?

  • Andrew Paul Shakespeare

    Yesterday, the government defended its position on the grounds that if anybody didn’t like the conditions under which they worked, they were free to resign and find a different field of employment. I find it regrettable that we seem to have returned to a situation in which a whole range of professions are, in effect, barred to proponents of specific faiths.

    Until the nineteenth century, Catholics were forbidden to be magistrates, for example (and forbidden from many other professions also). In the twenty-first century, it would appear that a Christian is forbidden, to all effects and purposes to be a sex therapist.

  • chesters

    the problem here is that the law seems to be applied selectively. eg I recently worked in a secure hospital (mentally disordered offenders) where a nursing sister was a devout muslim who wore the full burkha. Only her face was left uncovered. During certain holy times, she was allowed to go off shift frequently to pray. Other staff had to cover for her. Also, one wondered how she would have managed if there had been a crisis and she had to run down the corridor to protect a patient or member of staff from violence. How would she have managed to pin down a patient with all that covering impeding her movements? In my opinion, her need to demonstrate and practice her faith actually put other people at risk. Her religious rights trumped everything else. But then, she was of the kind of faith you don’t want to offend, right?

    • Andy

      Correct ! The burkha is not necessary for her faith – it is nowhere mentioned in the Koran. It is actually a political statement rather than a religious symbol. But of course Muslims are a favoured religions group: Christians are not.

      • Andrew Paul Shakespeare

        I’m not a Muslim, and I’ve never read the Koran, so I couldn’t comment with any authority. But that so many Muslim women wear them, and clearly voluntarily, would suggest to me that there is a clear understanding among Muslims that it’s a necessary part of their faith.

        My understanding, based on the occasional conversation that I’ve had with Muslims, is that it’s about modesty, something that the Koran certainly does encourage. My guess is that the manner in which modesty is accomplished depends on cultural traditions.

        I suppose it’s a bit like exercise. It’s well understood that, to enjoy a good life, we need to exercise frequently. How we choose to attain that will depend upon our personal tastes — but it would be tyrannical for some official to dictate: “No, you’re not allowed to go swimming. You MUST play football!”

        There is certainly no lack of Muslim women who choose not to wear a burkha, but if some do (and an awful lot of what people say about oppressed women being forced to wear it as a means of oppression is crap, frankly), I would certainly uphold their right to do so. We’re talking about clothing, for crying out loud! What kind of tyranny attempts to regulate people’s dress choices?

        • terry

          “I’ve never read the Koran”. When it comes to Islam and Muslims, you’re running on ’empty’. In any case, the Koran is only 15% of Islamic doctrine. The hadith and sira complete it. Top it off with shari’ah law, and you’ll understand the ideological black death of Islam.

          • Andrew Paul Shakespeare

            How remarkable that ideological black death should be so popular.

    • Andrew Paul Shakespeare

      The hospital still has a duty to uphold the health and safety both of the nurse and of the patients, so I’m sure they’d considered her requirements in their risk assessments, and developed suitable procedures for her training.

      For that matter, I doubt she’d have qualified to practice in such an environment until she’d demonstrated herself competent to deal with such crises as were likely to arise.

      As for “pinning people down”, she probably wouldn’t have been much use if the patient was 6’6″ and built like a brick outhouse, but that’s not a reason to discriminate against short, slim employees. Again, the hospital undoubtedly has procedures to cope with that situation.

      At uni, I had a study partner who was a Muslim from Indonesia. During homework sessions, he would take off to the Student Union to say his prayers. It only took a few minutes. It was never that big a deal. Do you ever take time out for a ciggie break? Or to go to the toilet? Or for a conversation with a friend? Lighten up! We’re not talking about the workhouse here.

      A devout Muslim is required to pray five times a day: once first thing in the morning, once last thing at night, and the other three at various points in the day. In the course of a standard eight-hour shift, they’re not not likely to need a prayer break more than once. Your assertion of “frequently” is an exaggeration — what a shame that you feel the need to resort to hyperbole.

      By the way, it’s not a full burkha if her face is uncovered.

  • Kevin

    public faith has declined in Britain

    Legal barriers to the living of a Christian life are precisely the issue in these cases.

  • Rue de la Loi

    What is striking about this is that on the very day that Dave is shifting the recumbent bodies slumped in the deckchairs on the poop deck of the Coalition, HMG is in Strasbourg arguing for a position that is surely inimical to Conservative views on this.

    There was no obligation for the UK to defend these proceedings and public opinion both on the merits of the case and on the disutility of having this sort of matter determined by the ECHR would have been better served by not respondng to the application at all. What motivated the Attorney General to send counsel to advance the disgraceful argument (so it is reported) that Christians persecuted for wearing an unobtrusive cross should just lump it or get another job?

  • james102

    The freedom to agree with the political class was a feature
    of National Socialist Germany and the USSR.

  • Marcus

    It’s difficult to have any respect for Christians these days, out of touch doesn’t come close!

    • Terry

      It’s difficult to have any respect for Muslims these days, out of touch doesn’t come close!

    • Fergus Pickering

      Out of touch with what, old son? Out of touch with you? And who are you, one might enquire?

    • 2trueblue

      Why? In what way? Out of touch with what? Or do you apply this attitude to anyone who has any belief?

  • Simon Gardner

    McFarlane the sex counsellor had counselling gay clients as part of his job, signed an agreement to it, then reneged.

    Former nurse Chaplin was allowed to wear her christian symbol as a brooch but refused.

    Nadia Eweida also refused to wear her christian symbol as a brooch/badge.

    Ladele the Registrar refused to do her job despite the fact that conducting same-sex civil partnerships was part of that job.

    • Fergus Pickering

      But why were they not allowed to wear them as they wished? Was it a health and safety issue? Balls, if I may say so.

    • Andrew Paul Shakespeare

      I doubt anybody discussed such situations during their job interviews, so they didn’t have an opportunity to make their views clear. Nor would an exhaustive inquisition of all conceivable eventualities be practical. But when you employ somebody, you don’t get a machine, but an individual, who comes with a package of opinions and concerns, backed up by a conscience. A little give and take is all these people are requesting.

      Does any airline passenger really give a damn if one of the flight attendants is wearing a cross (British Airways has since moderated its uniform policy, by the way)?

      What gay couple would want to be counselled by somebody who had a moral objection to their lifestyle? Could they rely on his giving them impartial advice? Would it even be ethical for somebody to provide counselling in that situation?

      • Simon Gardner

        I discovered a medical professional who was treating me had religion. I fired him immediately. It goes straight to competence. Anyone completing a scientific medical training and ending up with that nonsense on their heads clearly hand’t been listening properly during their lectures.

        • Andrew Paul Shakespeare

          No, it goes straight to your ignorance and paranoia. I don’t think you even know what religion is.

          • Simon Gardner

            Suit yourself but I don’t want to be treated by a verified moron.

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