The judgment of the European Court of Human Rights in Eweida and others v United Kingdom Footnote 1 related to two pairs of cases.Footnote 2 The first pair concerned a British Airways check-in clerk and a nurse, each of whom complained that dress codes at their respective places of work prevented them from openly wearing a small cross on a chain around their neck. In the second pair, a registrar of marriages and a relationship counsellor refused to offer their respective services to same-sex couples on the basis that homosexual acts were incompatible with their religious beliefs. Having failed to obtain relief in the domestic courts, all four applicants took their claims to Strasbourg, which heard oral argument last September. Judgment was pronounced on 15 January 2013. This Comment considers the broad thrust of the judgment, particularly the threefold manner by which the Court has clarified and embedded the right to freedom of religion, the practical outcome in the individual cases, and the likely effect of the judgment upon future litigation in the domestic courts of the United Kingdom.
AFFIRMATION OF RELIGIOUS LIBERTY
In common with any judgment of the European Court of Human Rights, the most significant part lies in the articulation by the majority of the emergent principles in accreted Strasbourg case law, interpreting and applying the relevant Articles of the European Convention on Human Rights (ECHR).Footnote 3 What one finds is the adoption of language that, when sufficiently repeated over time, develops into a mantra not unlike a species of common law for application in (mostly) civil law jurisdictions.
In these conjoined applications the principles were already well known and had earlier been adverted to by Sir Nicolas Bratza, then President of the Court, when he addressed a joint gathering of the Ecclesiastical Law Society and the European Consortium for Church and State Research in Oxford in October 2011.Footnote 4 They are helpfully gathered up in paragraphs 79 and 80 of the Court's judgment, which, for convenience, can be broken down into the following succinct propositions:
i. As enshrined in Article 9, freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’ within the meaning of the Convention.
ii. In its religious dimension it is one of the most vital elements that go to make up the identity of believers and their conception of life.
iii. But it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it.Footnote 5
iv. Religious freedom is primarily a matter of individual thought and conscience.
v. This aspect of the right set out in the first paragraph of Article 9, to hold any religious belief and to change religion or belief, is absolute and unqualified.
vi. However, as further set out in Article 9(1), freedom of religion also encompasses the freedom to manifest one's belief, alone and in private, but also to practise in community with others and in public.
vii. The manifestation of religious belief may take the form of worship, teaching, practice and observance.
viii. Bearing witness in words and deeds is bound up with the existence of religious convictions.Footnote 6
ix. Since the manifestation by one person of his or her religious belief may have an impact on others, the drafters of the Convention qualified this aspect of freedom of religion in the manner set out in Article 9(2).
x. This second paragraph provides that any limitation placed on a person's freedom to manifest religion or belief must be (a) prescribed by law and (b) necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein.
After setting out these broad, well-established and non-controversial statements of principle, the majority opinion then proceeds to identify three subtle but significant elucidations through which the Article 9 right to freedom of religion is both clarified and reinforced.
EXTENDED AMBIT OF ARTICLE 9
In re-articulating the ambit of Article 9, through this carefully voiced judgment, the effective reach of the Article as an instrument for securing religious liberty for Christian litigants is increased.Footnote 7 Individually these developments are significant; collectively they mark a discernible strengthening of religious liberty, which is likely to be reflected in more nuanced determinations by the domestic judiciary and even, in certain instances, in the revisiting of some earlier judgments that may no longer represent a accurate statement of Strasbourg jurisprudence.Footnote 8 At the very least, the approach of domestic courts to alleged violations of Article 9 will be irrevocably altered, with the focus shifting from the gateway filters of Article 9(1) to the complex balance of competing rights and limitations found in Article 9(2). It is helpful, therefore, to identify these three aspects individually before evaluating their combined effect.
Legitimacy
First, the Strasbourg Court has made plain that, provided a religious view demonstrates a certain level of cogency, seriousness, cohesion and importance, the state'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’.Footnote 9 This clarification might legitimately be applied, for example, in the pending case of Church of Jesus Christ of Latter-day Saints v United Kingdom,Footnote 10 where a local valuation officer refused to grant an exemption from business rates (which was enjoyed by other churches) on the basis that Mormon doctrine restricted admission to its temples only to those in good standing. For entitlement to a tax exemption to be determined by reference to the Court's assessment of the polity and practices of a faith community is invidious and runs contrary to this explicit enunciation of principle by the Court.
Several major domestic cases have already grappled with this principle. In Williamson, for example, Lord Nicholls stated
The court is concerned to ensure an assertion of religious belief is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’ … But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and judge its ‘validity’ by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant's belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjective belief of an individual. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. … The relevance of objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.Footnote 11
With similar clarity, Lord Walker of Gestingthorpe put it as follows:
I doubt whether it is right for the court … to impose an evaluative filter at the first stage, especially when religious beliefs are involved. For the Court to adjudicate on the seriousness, cogency and coherence of theological beliefs is … to take the Court beyond its legitimate role.Footnote 12
This reference to the legitimate role of the court has echoes of the long-established principle of judicial deference whereby matters of religious doctrine are non-justiciable. This was recently reaffirmed by the Court of Appeal in Khaira v Shergill.Footnote 13
Doctrinal mandate
In recent years, the principle has taken root in English law that only manifestations of belief that are doctrinally mandated attract protection under Article 9 of the European Convention on Human Rights.Footnote 14 Thus Sikh litigants earned the right to wear the kara (bracelet)Footnote 15 and kirpan (dagger)Footnote 16 and Muslims (in some instances) the right to wear a veil or headscarf.Footnote 17 The judgment of the Court has outlawed this narrow interpretation of religious manifestation, which had never been a proper reflection of Strasbourg jurisprudence in any event. As the Court affirmed, even where the belief in question attains the required level of cogency and importance, it cannot be said that every act that is in some way inspired, motivated or influenced by it constitutes a ‘manifestation’ of the belief.Footnote 18 It continued: ‘acts or omissions which do not directly express the belief concerned or which are only remotely connected to a precept of faith fall outside the protection of Article 9(1)’.Footnote 19
While rightly acknowledging that liturgical acts are self-evidently outward expressions of belief, the Court makes clear that the manifestation of religion is much wider than this. What must be demonstrated is ‘a sufficiently close and direct nexus between the act and the underlying belief’.Footnote 20 The majority judgment could not be more explicit: ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.Footnote 21 The first of the minority opinionsFootnote 22 is equally plain, addressing directly the question of the cross:
Provided a sufficiently close and direct nexus between the act and the underlying belief exists, there is no obligation on an applicant to establish that he or she acted in fulfilment of a duty mandated by the religion. In the present case, 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 for it to amount to a manifestation of her religious belief.Footnote 23
Thus the domestic courts were wrong in Eweida and Chaplin to regard the display of a cross as a personal choice and no more than a fashion accessory.Footnote 24 The decision in Strasbourg perhaps also amounts to a vindication of Mr Justice Collins, who, in G v St Gregory's Catholic Science College, commented that the requirement in Watkins-Singh to show that a particular practice was of ‘exceptional importance’ put the threshold too high.Footnote 25 Similarly, in R (On the application of Bashir) v The Independent Adjudicator and HMP Ryehill and the Secretary of State for Justice,Footnote 26 HHJ Pelling QC, sitting as a Deputy High Court Judge, rightly rejected a submission that the claim should not be entertained because fasting, in this instance, was not obligatory but voluntary, stating, ‘There is nothing within Article 9 that requires there to be a perceived, much less an objectively demonstrable, obligation for the manifestation of religious belief to be protectable’.Footnote 27 This previously uncertain element of domestic jurisprudence ought therefore to become a matter of historic interest only.
Resignation as guarantee of religious freedom?
The most significant aspect of the Court's judgment is the laying to rest of a principle that had been gaining currency in both Strasbourg and domestic jurisprudence, to the effect that if a person can take steps to circumvent a limitation placed upon him or her, such as resigning from a particular job, then there is no interference with the Article 9 right.Footnote 28 It follows that the employer's defence of ‘my way or the highway’ will no longer be available.Footnote 29 As the Court states in the opinion of the majority:
Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.Footnote 30
As with the doctrinal mandate point, it is to the minority opinionFootnote 31 that one must look for the most uncompromising statement of this sea change in Strasbourg jurisprudence:
A restriction on the manifestation of a religion or belief in the workplace may amount to an interference with Article 9 rights which requires to be justified even in a case where the employee voluntarily accepts an employment or role which does not accommodate the practice in question or where there are other means open to the individual to practise or observe his or her religion as, for instance, by resigning from the employment or taking a new position. … Insofar as earlier decisions of the Commission and the Court would suggest the contrary, we do not believe that they should be followed.Footnote 32
It is often stated that the European Convention on Human Rights is a ‘living instrument’Footnote 33 and that its interpretation may evolve over time in keeping with social mores and other factors. It may be that the depressed labour market at the present time was a factor militating in favour of this new approach,Footnote 34 or it may simply be recognition of the harshness of the former decisions.Footnote 35 The minority opinion suggests that the earlier decisions were wrongly decided. The text omitted from the foregoing quotation reads as follows:
any other interpretation would not only be difficult to reconcile with the importance of religious belief but would be to treat Article 9 rights differently and of lesser importance than rights under Articles 8, 10 or 11, where the fact that an applicant can take steps to avoid a conflict between Convention rights and other requirements or restrictions imposed on him or her has been seen as going to the issue of justification and proportionality and not to the question of whether there has been an interference with the right in question.Footnote 36
It follows that several domestic cases decided on the impugned basis now outlawed by Strasbourg can no longer be considered to be reliable statements of legal principle. These include the House of Lords decision in Begum, where the Muslim schoolgirl in question had the option of moving to another school with a more relaxed uniform policy.Footnote 37 In fairness to the English judiciary, several judges – including Neuberger LJ (as he then was) and Mummery LJ – had been critical of the earlier authorities, Mummery regarding them as ‘arguably surprising and the reasoning hard to follow’.Footnote 38
Although the Court indicates that an individual's decision to enter voluntarily into a contract of employment that will require him to act against his religious beliefs would not necessarily be determinative,Footnote 39 it will clearly be a very weighty factor in considering whether a fair balance was struck by the employer in its policy of providing a service without discrimination.
SHIFTING THE JUDICIAL FOCUS IN DOMESTIC COURTS
While the three distinct matters outlined above will serve, both individually and cumulatively, to clarify and extend the ambit of Article 9, they will not necessarily lead to a seismic shift in litigation outcomes.Footnote 40 The reason for this is that each of these three matters are ‘gateway considerations’, or filters that determine whether or not Article 9 is engaged in the first place: that is, whether there has been an interference with the enjoyment of the right as articulated in Article 9(1). No longer will it be open to defendants to seek a ‘knockout blow’ by challenging the authenticity of the belief or whether its outward manifestation is doctrinally mandated or by demonstrating that resignation from a particular job would allow the individual the uninhibited practice of his or her religion. Instead, the majority of future cases are likely to satisfy these gateway criteria with relative ease and far fewer will be filtered out at the first stage.
In consequence, the juridical battleground will henceforward be firmly sited within Article 9(2) and, in particular, the requirement to demonstrate that any limitation on freedom of religion is (a) prescribed by law and (b) necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.Footnote 41 In considering the concepts of reasonableness and proportionality, the strength of doctrinal compulsion and the prospect of resignation will be relevant factors but not determinative, and in any event they will feature alongside a constellation of other matters of varying relevance and weight. Most significantly, however, the burden of proof will shift to the employer to justify the interference.Footnote 42 It is imprudent, particularly for a practitioner, to speculate upon whether the ever-expanding volume of religious liberty claims to be adjudicated by the courts and tribunals of England and Wales will now be differently determined in consequence of this seminal Strasbourg judgment. The cases are fact-specific, and shifting the theatre of dispute from Article 9(1) to Article 9(2) might well produce identical results but with different and more sophisticated reasoning. Since, however, there is a greater subjective element to Article 9(2), judicial outcomes may become less predictable.
THE SPECIFIC CASES
The actual disposal of each of the four applications is of far less importance than the issues of principle and the revised judicial approach. Each case turns on its own facts and it is foolhardy to extrapolate principles of general application from the result of one case. It is, however, possible to venture some general observations on the Strasbourg judgment in its totality.
The fact that four applications were determined in the course of the same judgment allows a number of comparisons to be made, some of which raise more questions than they answer. First, it is noteworthy that the judgment recites, properly, the law and practice of several foreign jurisdictions (notably Council of Europe member states, the USA and Canada), which demonstrates the absence of any consistent approach to the state regulation of wearing religious symbols in the workplace.Footnote 43 However, no reference was made to the law of those jurisdictions on the reasonable accommodation of conscientious objection without undue hardship where there is a greater consistency of approach, nor to the law of certain countries such as South Africa that provide a conscience clause permitting a doctrinal opt-out to registrars of civil partnerships.Footnote 44
Secondly, while the Court prays in aid the margin of appreciation in deferring to the state the balancing exercise in relation to the competing rights in Ladele and McFarlane (refusal on religious grounds to provide a service to same-sex couples),Footnote 45 no such latitude was afforded to the domestic courts in Eweida. The majority concluded that a fair balance had not been struck by the domestic courts. On one side of the scales was Ms Eweida's desire to manifest her religious belief; on the other was the employer's wish to project a certain corporate image. The Court considered that,
while this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida's cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.Footnote 46
Here the Court openly substituted its own discretion for that of the domestic courts, in an exercise of micromanagement that many would consider inappropriate for an international court responsible for enforcing treaty obligations of national governments.Footnote 47 The Court did not show the same level of micromanagement in relation to the application of nurse Shirley Chaplin. It determined that, on the particular facts of her case, the scales fell the other way. Her workplace was a hospital, where concerns of health and safety amounted to a compelling and proportionate reason for a restriction on her freedom otherwise to manifest her religious beliefs. Although it may have been a rather slender justification,Footnote 48 the majority considered ‘the protection of health and safety on a hospital ward was inherently of a greater magnitude’ than the projection of a certain corporate image.Footnote 49 The judgment continued:
Moreover, this is a field where the domestic authorities must be allowed a wide margin of appreciation. The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence.Footnote 50
It would be an oversimplification to assert that in the future the Court will defer to hospital managers but overrule corporate executives, but an excess of elasticity in the application of the margin of appreciation could prove harmful to the effective functioning of the Court in the long term.
Thirdly, there are the unintended consequences of the judgment, namely a possible chilling effect for human resources in the workplace. One highly material factor (possibly even determinative) was the fact that British Airways changed its uniform policy to remove the ban on the wearing of religious symbols. The Eweida judgment is symbolic only: the applicant had already been successful in a higher court – that of public opinion – which had coerced British Airways to relent. This, the Court concluded, demonstrated that the earlier prohibition ‘was not of crucial importance’. Condemning the one employer that had made an adjustmentFootnote 51 might make employers less inclined in the future to make the pragmatic adjustments that hitherto have been done routinely, for fear they will be condemned for so doing in courts and tribunals. This would be an unfortunate side effect of the otherwise successful outcome of the litigation in its furtherance of religious toleration.Footnote 52
Fourthly, there is what many consider to be the real loser in the four conjoined applications, that of Lillian Ladele. The Court failed to differentiate between Miss Ladele and Gary McFarlane, the Relate counsellor, whose application was rightly rejected because he voluntarily put himself in a position where he would be expected to provide psycho-sexual counsel to both straight and gay couples; and because accommodating him by filtering clients was not possible. It was very different for Miss Ladele. An unanticipated and unilateral change in a fundamental term of her employment gave her a stark choice: to act against her religious convictions (which the court accepted were conscientiously and sincerely held) or to leave her employment. Miss Ladele's conscience could have been accommodated by Islington without any detriment to Islington's civil partnership service.Footnote 53 Staff employed subsequently would not have the benefit of conscientious objection and thus there would be a sunset element to this modest level of accommodation. The two dissenting judges in their minority opinion re-crafted Miss Ladele's claim as one of freedom of conscience rather than religion. But the intemperate tone of parts of their judgmentFootnote 54 serves to detract from the compulsion of its analysis. It is in balancing the protection of the conscience of the employee (taking into account the harm caused to her as an individual by non-accommodation) against the promotion of principles of equality in the provision of a public service (taking into account the absence of harm caused to any individual by accommodation) that these conjoined applications reach their flashpoint. A variety of legitimate but divergent views can reasonably be held on this question. It is perhaps the superficiality of the Court's analysis that is most disappointing in this regard.Footnote 55 In the light of the powerfully expressed dissenting opinion, it is hoped that the Grand Chamber may be afforded the opportunity of reviewing the decision in Ladele and engaging more thoroughly with the issues of law and principle that were advanced on her behalf and not addressed or resolved in the judgment.
Finally, there is a growing tension between Article 9 rights and the anti-discrimination provisions of the Equality Act 2010. Both are justiciable in United Kingdom courts: the former are also subject to the interpretative jurisdiction of the European Court of Human Rights in Strasbourg, while the latter are dealt with by the European Court of Justice in Luxembourg.Footnote 56 Just as the Eweida judgment has been long awaited, the time must surely be coming when the clash of religious conscience and discrimination on the ground of sexual orientation is exhaustively considered in the Luxembourg court. And doubtless any dissonance between the approaches of these two pan-European institutions will be the subject of future articles in this and other journals.
