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Disappointment in Strasbourg

Religious freedom in the UK takes another hit in the courts.
Peter Smith | 17 January 2013

The European Court of Human Rights has handed its judgment concerning four British workers who claimed that their human right to manifest their religion had been breached by their employers.

Two of the cases, Nadia Eweida and Shirley Chaplin, involved the wearing of small jewellery crosses at work. Eweida was a part-time employee of British Airways, where she wore a uniform and dealt face-to-face with customers. BA’s employee handbook allowed the wearing of the hijab or a turban with the uniform, but prohibited her cross. She was suspended for several months until a national outcry forced BA to recant; it changed the handbook and allowed cross-wearing.

Nadia Eweida won her case at Strasbourg because the Court was not happy with either the idea that the firm’s desire for a professional image necessitated a ban on small, smart crosses, especially given their accommodation of other religious dress, nor with the disproportionate balance that BA had struck between its rights as an employer and Eweida’s rights as an employee.

Shirley Chaplin was a geriatric nurse in the NHS whose bosses told her to cover up her cross, lest a patient throttle her by it or it dangled into a wound and caused an infection. The NHS offered her the option of wearing the cross on her lapel, but she refused. Chaplin lost her case, as the ECHR agreed that the NHS could balance religious freedom against the need to protect staff and patients, and the actions the NHS had taken seemed proportionate and were within the reasonable range of decisions that they could have taken to safeguard health.

It is a little disappointing that Chaplin, a nurse with much experience, could not be allowed to decide whether there was a reasonable safety risk or not, but in the round, both of these decisions are good ones. A fair balance seems to have been reached between religious concerns and practical ones. Moreover, the Court recognised that the wearing of a cross was a real manifestation of being a Christian that fell within the scope of protection afforded by Article 9 of the European Convention.

Previous courts both domestic and international have taken a more Biblically-literal approach when deciding what a protected Christian practice or symbol should be (something that worries Catholics and others whose practices are also rooted in a tradition which has built up over centuries).

Beliefs in the workplace

The other two cases concerned not symbols but the manifestation of beliefs in the workplace, as a result of holding Christian faith.

Lillian Ladele was a civil marriage registrar for a notoriously left-leaning council, Islington Borough, in central London. She had been doing her job happily for many years when Parliament created same-sex civil partnerships. Councils were obliged to offer partnerships but not to compel all of their registrars to conduct them. Islington, using its ‘equal opportunities policy’, decided that it would be ‘discriminatory’ not to force its entire staff to be open to conducting civil partnerships. Rather than reasonably accommodating her faith, by rejigging the work roster to free other registrars to conduct civil partnerships, Ladele was fired.

In effect, the Court agreed with Islington’s actions. The purpose of equality legislation was to stop discrimination against people on the grounds of their sexual orientation. This gave Islington a right -- to act in accordance with the aim of removing discrimination against homosexuals – that, the Court felt, trumped the right to religious freedom.

The Court was not being overtly political when it reached this conclusion, but it clearly took cues from the legal (and thus political) climate in Britain. On the face of it, equalities legislation puts religious discrimination and discrimination on the grounds of sexual orientation on the same level, along with discrimination on the grounds of race, sex or age.

In practice, however, the ‘spirit’ of the laws has been held to be in favour of rooting out and destroying all possible discrimination against homosexual people, even if no actual discrimination existed or would ever exist (not once was it seriously entertained that a gay couple would be turned away from the town hall doors because a registrar who ‘agreed’ with, or at least tolerated, their sexual orientation could not be found).

This is a disappointing conclusion for the Court to reach – and, indeed, two of the seven judges dissented. In the words of one legal commentator, Joshua Rozenberg,

Recalling that civil partnership ceremonies did not exist in 2002 when Ladele became a registrar in London, the judges 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".

Gary McFarlane was a sex therapy and relationship counsellor for an organisation, Relate. He knew when he was employed by Relate that he might have to participate in therapy with gay couples, and indeed he was happy to counsel same-sex couples on their relationships without talking about sex. For these reasons, McFarlane had a weaker case, as it was both foreseeable and likely that he would be put in a position against his conscience in due course, and it was unreasonable for him to conduct same-sex counselling up until sex was mentioned.

Some positive developments

Drawing out the positives from the judgment, it was good to see the Court accept that it was a protectable Christian belief not to conduct acts that contradicted orthodox Christian teaching on sexual acts. The Court did not pry into Christian doctrine to ask whether either McFarlane or Ladele’s objections were well-grounded in Christian thinking, teaching and tradition but found a broad latitude for a protectable Christian belief.

It was also good to see the Court reject the point made by the UK’s barrister, that a Christian who didn’t like the terms of their employment should ‘leave their beliefs at home’ or resign and get another job - a particularly challenging task in the current economic climate. Ultimately, the result of that line of thinking would be to cut off large sections of the job market from the religious.

Some have found succour in the fact that, for the first time since joining the European Convention on Human Rights, Britain -- which was one of its architects and founding signatories – has been defeated in the Court in favour of the cause of religious liberty. Rozenberg thinks that because the Court gave the UK a wide scope of discretion when interpreting religious freedom, it “allows for the possibility that future disputes will be decided in favour of religious groups”.

However, the intellectual climate in Britain is overwhelmingly secular and anti-religious, and there is an almost-vanishing chance that the English judiciary will carve out a meaningful obligation on employers to accommodate their employees’ objections. Without Parliament acting and creating something akin to the First Amendment of the American Constitution, the jurisprudential orientation of the liberal-minded (in the pejorative modern sense) will dominate.

This is not a great victory, then. But it is notable that the question of conscientious objection is increasingly to the fore in British political life, as same-sex marriage, workplace conditions and ‘hate speech’ legislation are debated.

The task for the religiously-minded will be to build platforms – often with opponents – so that free debate and proselytizing can survive, so that dissenting opinions can be heard, and so that the secular, ‘liberal’ establishment is neutral (or at least tolerates) objections rooted in a faith built on reason, tradition, experience, and yes, Scripture. 

Peter Smith is a lawyer living and working in London.

MORE ON THESE TOPICS | religious freedom, secularism, UK
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