%20(2).png)
In a democratic society Article 9 is essential for the preservation of diversity and tolerance. Individuals have the freedom of thought, conscience and religion; including the right to change those beliefs or religion at any time. All religions are given equal protection by the convention right. Some beliefs recognised by Article 9 include: pacifism, veganism, atheism and agnosticism.
Beliefs must be serious, sincere, concern important aspects of human life or behaviour and be worthy of respect in a democratic society. Individuals are also free from having a religion or belief imposed upon them. For example: when making an oath, the person taking the oath is free to affirm rather than be made to swear on a religious text, such as the Bible or Quran. People or groups also have the right to put those beliefs into action; which may involve wearing religious clothing, symbols or taking part in religious worship or ceremonies. These rights are laid out in Article 9 of the European Convention on Human Rights (ECHR) as follows:
“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.”
The right to freedom of thought, conscience and religion is absolute. That is, there are no restrictions to the right outlined in paragraph 1. However, as can be seen in para 2, the right to manifest one’s belief or religion may be restricted in certain circumstances. Freedom to practise one’s religion or put beliefs into action is balanced against the rights and freedoms of others and will often engage alternative rights under the ECHR, such as Article 10: freedom of expression or Article 11: freedom of assembly and association. Any interference with a person’s right to manifest their religion or belief must be proportionate, appropriate and no more than is necessary to address the concern that it hopes to solve. It is the limiting of peoples freedom to evidence their religion or belief that has been the subject of legal argument in domestic courts and the European Court of Human Rights (ECtHR). Let us look at some recent examples from the United Kingdom.
In Eweida and others v United Kingdom, four practising religious persons brought a case against the United Kingdom, arguing that domestic law had failed to protect their right to manifest their religious beliefs in breach of Article 9 of the ECHR and that amounted to discrimination, a breach of Article 14 of the same convention (prohibiting discrimination).
In the first case, Ms Nadia Eweida worked as a member of check in staff for British Airways Plc. She was prevented from wearing a visible cross at work. Her employer stated that it was not part of their uniform dress code, which was to communicate a certain image of the company and promote recognition of its brand and staff. Ms Eweida was offered an alternative position, which did not involve customer contact, but she declined and was suspended without pay. Due to the adverse publicity generated by newspaper articles, critical of British Airways decision, the airline amended its uniform dress code to allow certain religious symbols to be worn and displayed.
After Ms Eweida was reinstated she took her employer to an Employment Tribunal to ask for compensation for the lost earnings during her period of suspension.
She argued that there had been discrimination against her as a Christian and a breach of her right to manifest her religious belief. She lost and took her case to the Employment Appeal Tribunal and subsequently the Court of Appeal, where she again lost her appeal. She was refused leave to appeal to the Supreme Court, so, having exhausted all domestic legal remedies, took her case to the ECtHR at Strasbourg. The Court had to balance Ms Eweida’s right to manifest her religion, by wearing a cross, with the legitimate aim of the company, that was to project a corporate image.
Although the company had offered Ms Eweida an alternative administrative position that would not require her to wear a uniform, they had already made provision for employees to wear religious clothing, such as turbans and hijabs, without detracting from the corporate brand or image of the company. Furthermore, as the company had amended its uniform code, to allow for the wearing of religious symbolic jewellery, following Ms Eweida’s original complaint, it raised the question of how important had the policy been in the first instance? The ECtHR concluded a fair balance had not been struck. The domestic courts had not protected Ms Eweida’s right to manifest her religion under Article 9 of the ECHR.
Ms Eweida’s case may be contrasted with that of Ms Shirley Chaplin, a practising Christian and nurse. After a change in the style of her uniform, Ms Chaplin was asked to remove the cross she wore on a chain around her neck, on the ground it breached the employer’s health and safety policy. She went through a similar process with the Employment Tribunal, to that of Ms Eweida, and having exhausted all domestic legal remedies had her case heard at the ECtHR, along with Ms Eweida’s and others.
The ECtHR agreed there had been an interference with Ms Chaplin’s right to manifest her religion under Article 9.1 but had to balance whether that interference was necessary in a democratic society allowed for in Article 9.2. In this case the justification was to protect both employees and patients. As Ms Chaplin’s employers stated in evidence at the tribunal hearing, the cross on a chain had the potential to swing forward and injure a patient or come into contact with an open wound; the cross may be grabbed by a disturbed patient, causing injury to either Ms Chaplin or the patient. It was therefore held that the interference was necessary to pursue a legitimate aim of health and safety on a hospital ward.
Our third case concerns Ms Lillian Ladele, a practicing Christian, who in 2002 was appointed to the office of registrar of births, deaths and marriages. She was paid by the London Borough of Islington and had a duty to abide by its policies. That local authority pursued a policy of equality and diversity:
“Islington is proud of its diversity and the council will challenge discrimination in all its forms. ‘Dignity for all’ should be the experience of Islington staff, residents and service users, regardless of the age, gender, disability, faith, race, sexuality, nationality, income or health status. ... “
In December 2005, the Civil Partnership Act 2004 came into force in the United Kingdom. The act provided for the registration of civil partnerships between couples of the same sex and accorded to them the same rights and obligations of a married couple. In December 2005 the London Borough of Islington chose to designate all registrars of births, deaths and marriages as civil partnership registrars. For a while Ms Ladele, because of her sincerely held religious objections, was informally allowed to swap her duties with colleagues, so she would not have to perform civil partnership ceremonies; then two colleagues complained that her behavior was discriminatory.
In April 2006, Ms Ladele was informed by the local authority that failing to carry out civil partnership duties was a breach of its Code of Conduct and equality policy. After a period of negotiation and unable to reach a suitable compromise with her employer, Ms Ladele took her case to the Employment Tribunal, which found in her favour. The local authority appealed to the Employment Appeal Tribunal, which reversed the decision. It held that Islington Borough Council had been pursuing a legitimate aim in providing a registrar service on a non-discriminatory basis and therefore the treatment of Ms Ladele in achieving that aim had been proportionate. Ms Ladele made an application to the Court of Appeal, which upheld the decision of the Appeal Tribunal. Ms Ladele was denied leave to appeal to the United Kingdom Supreme Court. Having exhausted all domestic legal remedies, Ms Ladele’s case was heard, along with Ms Eweida, Ms Chaplin and one other’s, at the ECtHR.
The Judges acknowledged that the local authority and domestic courts have a wide margin of appreciation in balancing the conventions rights. It did not believe that margin of appreciation was exceeded in giving greater weight to the local authority’s aim in promoting a policy aimed at protecting the rights of others against Ms Ladele’s Article 9 right. There was therefore no breach of that Article 9 right.
We can see from each of these cases that when a breach of Article 9 is claimed the domestic courts and ECtHR are seeking to ensure any restriction of section 1 is legitimate and proportionate in compliance with the requirements of section 2. In the case of Ms Eweida, we saw that the domestic courts had breached her Article 9 right by not protecting it against a private company; which, by its own actions, was not able to demonstrate a legitimate ground for restricting her right to manifest her religion by wearing a cross alongside her corporate uniform. In Ms Chaplin’s case, preventing her from wearing a cross on a chain with her uniform was a legitimate restriction of her right to manifest her religion on the grounds of health and safety, both her own and that of her patients.
Ms Ladele’s case was less straightforward. It is arguable that, provided Islington Borough Council was able to provide a Civil Partnership Registrar Service, then maybe there would have been room for conscientious objection on the part of those who hold a religious belief that such a union was tantamount to marriage, which according to many religious doctrines should be the union of a man and a woman.
However, Islington Borough Council was afforded a wide margin of appreciation by the ECtHR: the margin of appreciation being a concept that allows a certain amount of wiggle room to democratically elected state governments in their implementation of convention rights. The fact that Islington Borough Council believed that the furtherance of equality and diversity, not just in terms of sexuality but more broadly, took precedent over an employee’s Article 9 right is surely evidence of a properly functioning pluralistic democracy.