Wednesday, 16 January 2013

Eweida and others v UK ~ a look at what is being said?

Update 20th January

The European Court of Human Rights (E Ct HR)  Chamber Judgment in Eweida and others v United Kingdom was handed down on Tuesday 15th January.  The court comprised 7 judges and the judgment is not final for a further 3 months so as to allow for any requests that the case be referred to the Grand Chamber.  Given the extensive coverage of the case in both the media and on other blogs, I do not propose to offer anything more than a brief overview of the actual decisions and then to look at some of the various blogs which have chosen to offer analytical comment.

The court's Press release and Judgment (including some partly dissenting opinions) are available.

The Convention rights:


Freedom of thought, conscience and religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are 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.


Prohibition of discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Under Art 9(1) the right to freedom of thought etc. is NOT a right which can be restricted by the state.  However, the right to manifest one's religions or beliefs may be subject to limitations prescribed by law and necessary in a democratic society in the stated interests set out in Art 9(2) - e.g. to protect the rights and freedoms of others.  The wearing of religious symbols such as a Cross is a manifestation of belief.  Other manifestations of belief include dress and particular dietary requirements.

Article 14 applies only in the way convention rights are secured.  There cannot be a violation of Art 14 in isolation from other convention rights.  Art 14 does not have an independent existence BUT Art 14 does not depend on another convention right being actually breached.

The four cases:

There were four separate cases before the court:  Ms Eweida, Ms Chaplin, Ms Ladele and Mr McFarlane.   Only Eweida won.

Eweida - British Airways - Crucifix

Eweida, who worked for British Airways,  argued that her rights under Article 9 of the European Convention had been breached.  She won her case by 5 votes to 2.  The Court concluded that a fair balance had not been struck between her desire to manifest her religious belief and to be able to communicate that belief to others and her employer’s wish to project a certain corporate image (no matter how legitimate that aim might be). Indeed, other BA employees had previously been authorised to wear items of religious clothing such as turbans and hijabs without any negative impact on BA’s brand or image. Moreover, the fact that the company had amended the uniform code to allow for visible wearing of religious symbolic jewellery showed that the earlier prohibition had not been of crucial importance. The domestic authorities had therefore failed sufficiently to protect Ms Eweida’s right to manifest her religion, in breach of Article 9. It did not consider it necessary to examine separately her complaint under Article 14 taken in conjunction with Article 9.

At para. 94 of the judgment, the E Ct HR noted - ' ... in weighing the proportionality of the measures taken by a private company in respect of its employee, the national authorities, in particular the courts, operate within a margin of appreciation.  Nonetheless, the Court has reached the conclusion in the present case that a fair balance was not struck.'   The E Ct HR then went on to determine what, in its view, was the right balance.

With regard to margin of appreciation, the E Ct HR noted at para. 85 that the application of the margin remained subject to 'European supervision.'

There is a dissent by Judges Bratza and Björgvinsson.

Chaplin - NHS nurse - Crucifix

Chaplin also wished to wear a Cross during her work as a nurse but the E Ct HR held unanimously that there was no violation of Article 9 either taken alone or in conjunction with Article 14.  Asking a nurse to remove her cross was based on health and safety in a hospital ward.  The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which had heard no direct evidence.

Interestingly, Chaplin had been given an option to wear a brooch showing her religious belief - she refused (para. 98 of judgment).

Ladele and McFarlane - Art 9 rights v Rights of others

Ladele was a Registrar who refused to conduct civil partnership ceremonies.  She argued that this condoned homosexuality.  She was eventually dismissed from her employment.  The E Ct HR held, by 5 votes to 2, that there was no violation of Article 14 taken in conjunction with Article 9. 

In Ladele's case, there is a dissent by Judges De Gaetano and Vučinic.  This is interesting in so far as they saw her stance as one of conscience which is protected by the convention Art 9(1) and so no balancing of rights was permissible.

McFarlane was a Relate counsellor.  He was dismissed because he had stated that he would comply with Relate's equal opportunities policies and provide counselling to same sex couples but he had no intention of doing so.  The E Ct HR held unanimously that his refusal amounted to a manifestation of his belief [109] but there was no violation of Article 9 either taken alone or in conjunction with Article 14.

In relation to Ladele and McFarlane, the E Ct HR said that the national authorities had a wide discretion when it came to striking a balance between the employer's right to secure the rights of others and the applicants' right to manifest their religion. The right balance had been struck at national level.

Comment on the blogs etc:

The judgments have resulted in an enormous amount of comment.

That this is a difficult area of law is evidenced by the partly dissenting opinions in Eweida's case and in Ladele's case.  Joshua Rozenberg - The Guardian 15th January - considered that the balancing of the rights in question was not easy and that the E Ct HR deserved some credit.

A good analysis of the case is at The Guardian 17th January 2013 - Mark Hill QC - Ladele is the real loser .... where Hill identifies the key legal elements in the decision.

Rosalind English, writing for the UK Human Rights Blog, was probably the first off the mark with her post on the cases - (here).   English noted that these are very 'fact-dependent judgements' and, for this reason, considered that the 'best place to find the sharp end of Convention interpretation and application is in the dissenting opinions, here provided by Bratza and Björgvinsson in one and De Gaetano and Vučinic in the other.'

A(nother) Lawyer offers a multiple part look at the cases: Part 1 and Part 2  and Part 3.  These posts are well worth reading because they look at some of the wider implications in this area of the law.

Religion Law Blog takes a first look at the cases.  The author (Barrister Neil Addison) looks at the dissenting opinion of Judges De Gaetano and Vučinic and states: 'It will be interesting to see if the case of Ladele is appealed since it raises real issue of principle which this dissenting judgement has highlighted and which deserves to be examined again. The decisions in the cases of Chaplin and McFarlane do not however raise these issues of principle and it may be sensible if they are not appealed.  With the case of Chaplin in particular any appeal raises the danger of the Appeal decision reversing or undermining the advantages for Christians obtained through the Eweida decision.'

Head of Legal (Carl Gardner) takes issue with the decisions on a number of levels - Strasbourg judgment: Eweida and others v UK.  He argues that, in Eweida's case, the E Ct HR substituted its own assessment of proportionality to that of the national court despite saying that, in weighing proportionality, the national authorities (including courts) should have a margin of appreciation.

Gardner states - 'I’m concerned about Eweida’s victory, and the reasoning behind the rejection of Shirley Chaplin’s claim. As far as religious symbols are concerned, the judgment represents a significant win for religious activists, and a blow for employers and secularism. Perhaps even more importantly, the case is another example of the Strasbourg court micromanaging respect for human rights in the UK rather than allowing appropriate respect for UK domestic authorities. That, though, is an aspect of the case I expect to be largely ignored by those Conservative voices who, in a different type of case involving a different type of claimant, would quickly denounce the interventionism Strasbourg has indulged in here.'

and, later:

'By rights, this should be one of the most controversial cases recently decided by Strasbourg against the UK. It’s arguably in a similar category to the cases on prisoners’ votes, the margin of appreciation of UK institutions being cast to one side as Strasbourg prefers to micromanage UK employment policy – which you would have thought highly sensitive for Eurosceptic Conservatives. It’s strange, then, that the particular alignment of religious and political interests behind it means the usual suspects, including David Cameron, will probably overlook Strasbourg’s excess on this occasion.'

There is really little doubt that the 'excess' will be overlooked since the decisions do not directly impact on actual decisions of Ministers or the government. 

The UK Constitutional Law Group blog has a post by Ronan McCrea - Strasbourg judgment in Eweida and others v UK.  McCrea's analysis highlights the changed approach of the E Ct HR to the 'right to resign' from employment.  The E Ct HR now feels that “the better approach would be to weigh [the possibility of changing job] in the overall balance when considering whether the restriction [of freedom of religion] was proportionate.” This brings the Court’s approach to freedom of religion in the workplace into line with its approach to the protection of rights such as privacy and free expression.  Having said this, McCrea considered that the change of approach will perhaps make minimal difference in practice. 

McCrea continues by looking at some worrying features in Eweida's case.   She had initially accepted a duty to conceal her cross but changed her mind later and launched a grievance procedure against her employer.  She did not wait for her complaint to be investigated but rather turned up for work in violation of its uniform policy. As the dissent of Judge Bratza (the British judge) noted, BA was rather accommodating towards her and offered her a role without direct customer contact and with no uniform requirement for the duration of the investigation of her complaint. Ms. Eweida refused this solution. Once BA had investigated her complaint, it changed the rules to allow her to wear her cross. It seems remarkable that such a sequence of events can be seen to have resulted in a violation.

As for the dissents in Ladele, McCrea is scathing.  He describes the wording is 'extremely intemperate and disturbing'  Their judgement uses language that is notable for its intemperate nature and hostility to the very idea of gay equality.

Update 20th January:

The Oxford Human Rights Hub has a number of posts including Eweida and others v UK: the use and abuse of the margin of appreciation.   This post calls for greater evaluation of why, in a particular instance, the margin of appreciation is exceeded but is not exceeded in other situations.   'The Court should demand evidential justification from states when faced with claims that countervailing interests, or indeed rights, are of such great magnitude as to justify restricting Convention rights. This won’t be achieved if it simply relies on the margin of appreciation in order to avoid justifying the “inherent” weight accorded to competing rights and interests in particular cases.'

EJIL: Talk!  The European Court of Human Rights gets it right: A comment on Eweida and others v UK - 19th January - Erica Howard - Senior Lecturer in Law University of Middlesex

Earlier post:

Human Rights - recent news - 10th September 2012. 

A very good, detailed and interesting post on the cases is at UK Human Rights blog 7th September 2012 - Rosalind English - Are Christians really marginalised in this country?

See also the Law Society Gazette 30th August 2012 - Joshua Rozenberg's article on the Ladele case - Religious beliefs should be respected when rights are not impeded.  A further good post, by Frank Cranmer,  is to be found at Law and Religion UK 7th September 2012 - Marginalised Christians?  Chaplin, Eweida, McFarlane and Ladele - again.

1 comment:

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