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Will Strasbourg restore English common law?

by
12 October 2011

The European Court could well overturn UK judgments in four cases of Christians in the workplace, says Mark Hill

At an otherwise uneventful Con­serv­ative Party Conference last week, the only excitement related to the call by both the Prime Minister and the Home Secretary for the repeal of the Human Rights Act, which they regard as placing constraints on government and leading to nonsensical outcomes.

The Act, of course, was a modest measure, part of a continuum of post-war articulation of civic rights. It required legislation to be inter­preted in conformity with the Euro­pean Convention on Human Rights, and it compelled public authorities to comply with its provisions. It made the Convention directly justiciable in the domestic courts of the United Kingdom.

The right to take a case to Strasbourg was not terminated, however. And, recently, the European Court agreed to entertain four cases from the uk. Two of them concern the wearing of a cross in the work­place, and the other two concern the conscientious objections of Christian workers to en­dorsing homosexual practice (News, 30 September). Each of the applicants had lost in the English domestic courts.

The UK Government has just filed its detailed response to the cases, and the European Court’s decision will have far-reaching implications, going well beyond the interests of the individual litigants. The Court has allowed a number of individuals and institutions to intervene in the pro­ceedings. These include the former Archbishop of Canterbury, Lord Carey; a former Bishop of Rochester, Dr Michael Nazir-Ali; and Premier Christian Radio.

What is at stake, it is argued, is the significance of Christianity as part of the fabric of the UK. The applicants maintain that the domestic courts in the UK have aggressively promoted the rights of minority religions, while denying a similar level of protection to Christianity. Courts have ruled in favour of wearing the Sikh kara bracelet in school (Watkins-Singh), the Muslim veil in the workplace (Noah v. Desrosiers), and of Hindu open-air cremations (Ghai v. New­castle City Council).

Yet, in the cases currently before the Court, a uniform code that prevented the wear­ing of a small cross was upheld, as was a requirement that an employee should register civil partnerships or pro­vide relationship counselling to homosexuals, despite a belief that same-sex relationships were incom­patible with biblical teaching.

The Court has con­sistently shown deference to religious rights, not least Kokkinakis v. Greece, where it was said that “freedom of thought, conscience and religion is one of the foundations of a ‘demo­cratic society’. . . [It is] one of the most vital elements that go to make up the identity of believers and of their conception of life. . . Bearing witness in words and deeds is bound up with the existence of religious convictions.”

Also, in June this year, the Court delivered its judgment in Jehovah’s Witnesses v. France, stating: “But for very exceptional cases, the right to freedom of religion as guaranteed under the Convention excludes any assessment by the State of the legitimacy of the religious beliefs or the means used to express them.”

One of the reasons why the UK courts declined to give protection to the wearing of the cross was that there was no doctrinal requirement for Christians to wear it. This approach was not merely contrary to Strasbourg jurisprudence, which outlawed investigation into the legit­imacy and cogency of manifestations, but to earlier decisions of the House of Lords to the same effect. Indeed, the Court asserted the primacy of a crucifix as a Christian symbol when delivering a seminal adjudication this year in Lautsi v. Italy.

WHEN addressing a joint meeting of the European Consortium for Church and State Research and the Ecclesi­astical Law Society in Oxford last month, Sir Nicolas Bratza, President-elect of the European Court, spoke of important issues arising from the Court’s con­sideration of freedom of religion under Article 9 of the Convention. These included the clash of com­peting rights and the display of reli­gious symbols. His lecture, although rightly circumspect on the pending cases, revealed a welcome sensitivity to religious concerns.

The decisions of the UK courts have lacked this judicial sensitivity, in large measure because the decision-making process is straitjacketed by the overly prescriptive and formulaic provisions of both the Human Rights Act and the Equality Act 2010.

It is to be hoped that, fortified by the clear steer in Lautsi v. Italy, the Euro­pean Court will seek to re­balance the relationship between the Christian and the state, and to restore the concept of “accommoda­tion”, whereby appropriate latitude is afforded to all faith communities to manifest their beliefs.

This would mark a return to the liberal tolerance of the 1980s, exemplified by the decision of the House of Lords to permit a Sikh pupil to wear a turban, despite a strict school-uniform policy (Mandla v. Dowell Lee).

The recent intervention of the UK’s Equality and Human Rights Commission, lending its support to a reversal of the overly restrictive approach of the UK courts, is to be welcomed (News, 15 July). It is now open to Strasbourg to condemn the UK courts’ narrow construction, and to afford legitimacy to genuine dis­plays of religiosity, sincere and symbolic of the Christian faith, albeit not obligatory as a matter of doc­trine.

Rather than repealing the Human Rights Act, as suggested by Tory high command, it should be made to work for the benefit of all, including the Christian majority. It is to be hoped that the eagerly awaited judgment of the European Court of Human Rights will restore the principle of tolerant accommodation which has been the hallmark of the English common law for centuries.

Professor Mark Hill QC is in private practice at the Bar in London. He is Chancellor of the diocese of Chichester and the diocese in Europe, and Honorary Professor at the Centre for Law and Religion at Cardiff Uni­versity.

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