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Strasbourg marks a sea- change in tolerance

25 January 2013

The decision in Eweida and Others v. the United Kingdom was a significant advance, suggests Mark Hill 

THE judgment by the European Court of Human Rights in the four conjoined applications on freedom of religion was always going to provoke intense academic discussion and hot-headed polemic - whatever the Court's reasoning.

I was addressing a conference in Ghana on the day in question, at which many of my fellow speakers shared their personal experiences of atrocities perpetrated in the name of religion. This put in perspective the overblown rhetoric of some of the litigants and their supporters, and their complaints of state-sponsored persecution of Christians in the United Kingdom.

Irrespective of the actual disposal of the four applications, the determination provides a lucid and coherent statement of the principles of freedom of conscience and religion enshrined in Article 9 of the European Convention on Human Rights. It is one of the most vital elements that go to make up the identity of believers, but also, the judgment reminds us, it constitutes a "precious asset for atheists, agnostics and the unconcerned", because "the pluralism indissociable from a democratic society depends on it."

THE judgment articulates and enlarges the right to freedom of religion in three important particulars, however. First, the Court makes plain that, provided a religious view demonstrates a certain level of cogency, seriousness, cohesion, and importance, the government's duty of neutrality "is incompatible with any power on the state's part to assess the legitimacy of religious beliefs or the way those beliefs are expressed". Domestic courts will therefore be spared the impossible task of adjudicating upon the veracity of religious doctrine.

Second, the Strasbourg Court has declared an end to the emergent practice of protecting only those religious practices that are doctrinally mandated. It acknowledges that liturgical acts are self-evidently outward expressions of belief, but that manifestation should be more widely interpreted.

As Sir Nicolas Bratza, the British judge, put it in his joint opinion: "We have no doubt that the link between the visible wearing of a cross (being the principal symbol of Christianity) and the faith to which the applicant adheres is sufficiently strong to amount to a manifestation of her religious belief."

It was the apparent denigration of the cross by the English judiciary, dismissing it as no more than a fashion accessory worn as a matter of choice, that generated indignation. The explicit disavowal of so narrow an interpretation should end the contention that less favourable treatment is afforded to Christians.

IT IS the third element that is most important. The judgment lays to rest a principle which had been gaining currency in both Strasbourg and domestic jurisprudence that the ability to resign from a job acts as a guarantee of religious freedom.

For the future, UK courts will have to find an interference in the right to manifest one's religion even when an employee could take another job where the regime is less restrictive. The onus will then be on the employer to justify the interference as reasonable and proportionate.

There is a perceptible sea change in the legal approach, and Judge Bratza boldly, and rightly, states that earlier decisions of the Strasbourg Court to the contrary should not be followed. It is in defining the boundaries on the limitations of the Article 9 freedom where the working out of the complex, and often highly political, balancing of competing rights ought always to have been.

It must therefore be gratifying for the two Church of England bishops who intervened in the proceedings, together with Premier Christian Radio, that the arguments they and others advanced on each of these three matters now find expression in the new approach to freedom of religion. 

HOW this more open and generous interpretation works itself out in practice remains to be seen. Every case is fact-specific, and it is unwise to generalise from disposal of each of the four applications, not least because of the wide margin of appreciation afforded to state legislatures and courts. Future litigation in the UK courts (which is inevitable) will be carefully analysed.

What of the law of unintended consequences? In making good its worthy statements of principle on the accommodation of manifestations of religious belief in the workplace, the Court granted relief in only one of the four cases. The majority chose to allow the application of Nadia Eweida, the British Airways operative.

In substituting its own discretion for that of the domestic courts, it was largely influenced by the fact that BA subsequently revised its uniform policy to accommodate Ms Eweida. This, the Court concluded, demonstrated that the earlier prohibition "was not of crucial importance".

Condemning the one employer who had listened, reconsidered, and adjusted its policy might have a chilling effect on human re- sources.

Litigation such as this is thankfully rare. Every day, sensible employers and reasonable staff achieve workable solutions consensually. Fears of adverse inferences being drawn by courts and tribunals might make employers less inclined in the future to make the pragmatic adjustments which hitherto have been done routinely.

This would be an unfortunate side effect of the otherwise successful outcome of the litigation in its furtherance of religious toleration.

Professor Mark Hill QC practises at Francis Taylor Building, Inner Temple, and is an Honorary Professor at the Centre for Law and Religion, Cardiff University. He acted for the Bishop of Chester, the (then) Bishop of Blackburn, and Premier Christian Radio, who were afforded intervener status in the litigation.

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