Eweida, Chaplin, Ladele and McFarlane: appeals to the European Court of Human Rights

The appeals of Nadia Eweida, Shirley Chaplin, Lillian Ladele and Gary McFarlane will be heard by the European Court of Human Rights on Tuesday 4 September 2012. Christian Concern has posted a series of documents relating to the  hearings in the conjoined cases of Eweida & Chaplin v United Kingdom (No. 48420/10) and of Ladele and McFarlane v United Kingdom (No. 51671/10) as follows:

Eweida & Chaplin:

Ladele & McFarlane:

In addition, the National Secular Society has posted its submission to the European Court of Human Rights on all four cases on its own website.

The bishops’ interventions: Perhaps the most interesting documents are the interventions by Bishop Nazir-Ali and Lord Carey.

Bishop Nazir-Ali argues that

“8. The Cross is ubiquitous in Christian devotion from the earliest times.  The sign of the Cross is made by Christians not only during worship but before and after meals, at times of danger and also to give thanks.  The Cross is the most easily recognisable Christian symbol in architecture, church furnishing and the dress of the clergy.  It is to be found on the walls of classrooms, chapels and Christian homes.

9. Lay people are encouraged to wear a cross or a crucifix to affirm their desire to follow in the way of Christ, as he taught us to do.  They wear it also to declare their faith and to witness to others.  For many, this is a lifetime commitment and they would feel very bereft if, for some reason, they were not allowed to wear it.  In some Christian traditions, wearing a cross or a medallion is especially significant” [emphasis added].

[10…]

11. The right to manifest the Christian faith is central to belief; it is little succour to the believer to be free to believe, but not be free to live his beliefs.  If the internal convictions are respected; so must be the external convictions: Kokkinakis v Greece.  It is very understandable that Christians should want to be visible and the wearing of a cross around the neck is a time-honoured way to do this; this is a manifestation of faith as understood in Article 9 of the Convention.”

Perhaps his most telling point is this:

“12. The wearing of the Cross is a religious manifestation of the Christian faith; it is inappropriate to describe aspects of devotion in terms of whether a practice is ‘mandatory’ or otherwise.  This ‘test’ is inappropriate for religious faith and no religion can be deconstructed to this simplistic level.

[13…]

14. The Cross symbolises the sacrifice of Jesus Christ as atonement for our sins.  The Cross is the symbol of Christ’s victory over death.   The wearing of the Cross is a manifestation of the Christian faith; this fact is so self-evident, there is something seriously amiss because it has to be said in contexts where the Judaeo Christian tradition has been formative of culture and customs.”

He further argues at paragraph 18 that the “group” test for Article 9 has the effect of rendering it nugatory:

“The requirement that Article 9 can only be effective if a ‘group’ of like-minded individuals is ascertained enables national courts to dismember Article 9.  There is no reason why Article 9 should not be ‘individual’; nor should the Court go beyond a ‘sincerity test’ of the adherent’s desire to wear a Cross.  It is not the public Court’s function to rule on religious truth or the correct manifestation of religious truth.”

In short, he rejects “the approach of the United Kingdom Courts premised on discrimination law and group disadvantage” and argues for a policy of “reasonable accommodation” (para 39).

Lord Carey begins by noting that:

“6. … [R]ights of lifestyle have been developed by Court decisions from concepts of ‘privacy’.  Both rights are important, but there is no reason a free society cannot respect both set of rights. Where there is a clash of rights, a balance is required.”

At paragraph 9 he expresses concern that

“… the State and the Courts are entering into religious and theological matters by making judgments on what constitutes ‘acceptable’ and ‘unacceptable’ matters of doctrine and ethics. This approach is both fallacious and simplistic.”

“Acceptable” practices are seen as harmless: “unacceptable” practices – among which he lists “Biblical ethical values on sexual conduct, family life, beliefs in the sanctity of life” give rise to dispute.

Like Bishop Nazir-Ali, he argues for “reasonable accommodation”. However, he goes further, claiming in a section headed The Persecution of Christians in the United Kingdom that Christianity receives less favourable treatment before the courts of the UK than other religions.

He concludes as follows:

“38. It is my view that the case of  McFarlane v United Kingdom will have profound implications for Europe; namely whether the Contracting States of the Council of Europe are to be free and respect traditional human rights; or whether another ‘experimentation’ in human rights will take place on the European continent.  Such ‘experiments’ have had an unsatisfactory outcome; in particular the undermining/ privatisation of Christian values have been a component of totalitarian States in Europe in the recent past.

39. The secular human rights agenda has gone too far; and the Convention is losing legitimacy in many Contracting states.  Many noble words such as ‘human rights’ are seen as little more than a political agenda.  The human rights agenda is now seen as an anti-moral agenda; the Court must restore its prestige by recognition of traditional religious values.

40. Christians have values of morality, honesty and generosity that the State should promote, not discourage.  The law recognizes minimum standards, and it is now accepted that the State should not advance a particular concept of morality but should not disable noble values.   The secular cannot lay claim to the whole of the society (the king’s writ does not run) if we are to remain a [free] society; religious exemption would avoid these types of conflicts and avoid secular entanglement with religious belief.”

Comment:  Bishop Nazir-Ali seems to be putting forward a perfectly reasonable and tenable argument that the courts tend to stray into evaluations of doctrinal matters – sometimes with rather unfortunate results – even though their general stance is to refuse to do so: for a recent example of such a refusal see Khaira & Ors v Shergill & Ors [2012] EWCA Civ 983, about which I blogged in July.

Lord Carey’s submission seems to be couched in rather more general terms. At paragraph 28 he comments, rather ruefully, that

“I have called for specialist Courts (similar to family or commercial courts) to adjudicate on religious disputes as there appears to be a lack of understanding and sensitivity to these issues.  This submission was ridiculed by the National Courts and I was portrayed as having asked for special courts for Christians (which I was clearly not arguing).”

The proposal – in McFarlane v Relate Avon Ltd [2010] EWCA Civ 880 – certainly received a drubbing at the hands of Laws LJ. However, it was not on the grounds that Lord Carey was asking for “special courts for Christians” but because

“… the law must firmly safeguard the right to hold and express religious beliefs. Equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.” (McFarlane para 23).

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As I was typing this, I heard Joshua Rozenberg telling Edward Stourton on Radio 4 that in his opinion the four applicants were unlikely to succeed, citing the fact that the United Kingdom has never had an adverse finding against it under Article 9. But who knows? – there’s always a first time; and some time early next year we’ll find out whether the UK has maintained its clean sheet.

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