Right to wear cross: Strasbourg’s balancing act

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Right to wear cross: Strasbourg’s balancing act

Article 9 of the European Convention on Human Rights grants citizens freedom of thought, conscience and religion, writes Mhairi Aylott. This includes freedom to change religion or belief, and freedom, either alone or in community with others and in public or private, to manifest religion or belief, in worship, teaching, practice and observance. This is not an absolute right –this right is subject to such limitations as ‘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.’ [pdf]

  • Mhairi Aylott is a researcher at the Young Foundation and has led research into Social Impact Bond and Payment by Result projects in criminal justice, for both local and central government.

The freedom to hold religious beliefs is unconditional. The only limitation concerns the way in which this freedom is exercised. Member states hold a ‘margin of appreciation’ when it comes to striking a balance between competing rights. It is this art of balancing competing considerations, and deliberating the nature of Art 9 which leads to discussion, debate, and legal proceedings.

This art of balancing is illustrated none better than in the case of Nadia Eweida, whose ‘right to manifest her religion’ was breached according to ECHR this week. Eweida was an employee of British Airways, who worked on the check in desk. Strasbourg ruled, by five votes to two, that her right to express religion was unfairly restricted when she was prevented from wearing a necklace with a small cross on it at work. In a landmark ruling, she has since been awarded €2,000 in compensation by the court, ruling against the United Kingdom, stating that our legal system had failed to balance competing interests in the case adequately. The Government has also been ordered to contribute to her legal costs.

As ever, this decision has been met with a flurry of opinions, some welcoming the decision, some presenting a dissenting view. It has also reopened the discussion of the legal decision making process, put bluntly, how the court decides where one individual’s right is infringed, and where the state has the power to prevent a right being exercised. This time, the balancing act fell in favour of Eweida.

The court commented:

‘… on one side of the scales was Ms Eweida’s desire to manifest her religious belief… On the other side of the scales was the employer’s wish to project a certain corporate image.’

The majority of judges maintained that the UK courts had given the latter aim too much weight, and that they saw ‘no evidence of any real encroachment on the interests of others’. Eweida, who apparently jumped for joy upon hearing the court’s decision, commented:

‘I’m very pleased that after all this time the European court has specifically recognised … that I have suffered anxiety, frustration and distress. It’s a vindication that Christians have a right to express their faith on par with other colleagues at work visibly and not be ashamed of their faith.’

Supporting the decision, David Cameron tweeted, ‘delighted that principle of wearing religious symbols at work has been upheld – ppl shouldn’t suffer discrimination due to religious beliefs.’ Liberty also tweeted in support of the decision, ‘today’s #eweidaandothers judgment is an excellent result for equal treatment, religious freedom and common sense.’ Andrea Williams, director of the Christian Legal Centre, which supported the cases, was also delighted, particularly that the ‘the cross has been recognised.’ Maria Miller, the equalities minister, expressed a similar opinion, stating ‘we are delighted the principle that one can wear religious symbols at work has been upheld. People shouldn’t suffer discrimination because of their religious beliefs.’

The other three
However, Eweida’s case was not heard alone, four cases were heard concurrently in front of the court. The three other claimants lost their cases – and the unsuccessful claims give opportunity to question the court’s decision making process. For example, Chaplin’s case was strikingly similar to that of Eweida’s – however the judges ruled in favour of the UK. Chaplin was forbidden to visibly wear a necklace with a cross on it at work. She worked in a hospital ward, and her employer argued that her necklace breached health and safety procedures. The court found that the prevention of disease, potentially passed through the necklace, was seen as ‘inherently more important’ than her right to wear the piece. Showing her frustration at Chaplin’s loss, Eweida commented:

‘I am very disappointed on behalf of the other three, especially Shirley Chaplin because wearing the cross is the same principle, her faith should be recognised and I fully support them in their quest for a referral to the Grand Chamber… to seek justice.’
Nadia Eweida

Appeals by the final two claimants were also dismissed. Ladele was disciplined by Islington council for objecting to conducting civil partnership ceremonies. McFarlane was dismissed as he indicated he had a conscientious objection to providing sex therapy to a same-sex couple because of his Christian faith. The court found in the favour of the British courts in this instance as both employers were bound by statutory duties not to discriminate against their clients and their clients’ rights under the convention. Therefore they were unable to employ or support staff who refused to work with homosexual couples.

The facts of these cases has been briefly summarised, but what is important to note is that all four cases had similarities in their facts and arguments presented by the courts. This judgement shows the wide direction the UK courts have in their initial court process and their ‘margin of appreciation’ in deciding cases. It also shows variation in the decision-making process of Strasbourg, and the subjectivity involved in legal cases. Circumstances are the decision-maker – the facts of the case, weighed against individuals rights and views, be they related to religion or sexuality, adhering to legal precedent where available. All of this is weighed against the rights and statutory obligations of an employer and the courts interpretation of the facts.

Eweida’s case is the first case in which a UK court has been defeated under a case brought under Art 9, and this judgment furthers protection and rights provided by Europe. Some have called this ruling ‘convenient’ as it has ‘supported the right to manifest one’s religion — but against the rights of an employer rather than against the rights of individuals. Some argue that practical effect of this is likely to be limited’, however what is important is the recognition of Art 9 and the legal precedent being created in our midst.