At its meeting on 24 April 2013 the Parliamentary Assembly of the Council of Europe adopted Resolution 1928 (2013), Safeguarding human rights in relation to religion and belief and protecting religious communities from violence by 148 votes to three, with seven abstentions. The Resolution calls on member states, inter alia, to:
- ensure equality of treatment before state and public authorities of all individuals and communities regardless of religion, faith or non-religious beliefs;
- reaffirm that they build their relations with third countries on the basis of respect of human rights, democracy and civil liberties and ensure that a democracy clause incorporating religious freedom is included in agreements between them and third countries;
- reaffirm that freedom of religion, conscience and belief is an essential part of European human rights guaranteed by the ECHR and comply with their obligations in that regard;
- protect women and girls from violence such as honour killings, bride burning, forced marriages and female genital mutilation;
- promote a foreign policy that takes into account full respect and effective protection for the fundamental rights of minorities as defined by their religion or beliefs;
- ensure that the religious beliefs and traditions of individuals and communities are respected, while guaranteeing that a due balance be struck with the rights of others in accordance with the case law of the ECtHR;
- guarantee freedom of thought in relation to health care, education and the civil service, provided that the rights of others to be free from discrimination are respected and that the access to lawful services is guaranteed;
- ensure the right of conscientious objection in matters such as military service, health-care and education, provided that the rights of others to be free from discrimination are respected and that access to lawful services is guaranteed;
- respect the right of parents to ensure that their children are educated in conformity with their own religious and philosophical convictions, while guaranteeing the fundamental right of children to education in an objective, critical and pluralistic manner;
- change any legal regulations that go against the freedom of association for groups (including churches) defined by their religion or beliefs;
- ensure full respect for Article 9 ECHR; and
- recognise the need to provide international protection for those seeking asylum due to religious persecution.
As the consultative arm of the institution responsible for the ECHR (and the body which elects the supposedly “unelected” judges of the ECtHR), the Parliamentary Assembly of the Council of Europe has a long history of engagement with questions of religion and human rights, though it sometimes does so from the perspective of continental European secularism: see, for example, Recommendation 1804 (2007), State, religion, secularity and human rights, in which the Assembly, rather in face of the empirical evidence, declared that
“… one of Europe’s shared values, transcending national differences, is the separation of church and state. This is a generally accepted principle that prevails in politics and institutions in democratic countries”.
Which all depends on precisely what you mean by “the separation of church and state”: it is likely to suggest different things to, say, a Dane, an Irishman and a Frenchwoman.
On education, the Resolution largely ducks the issue of the rights of the child, as opposed to the rights of the parents. As we have commented previously, in some states the situation with regard to religious education tends to be somewhat paradoxical: the “education” is done to the children but, in practice, the “rights” largely inhere in the parents – and relatively little attention, if any, is given to the preferences of children under the age of sixteen. And I am not sure that reference to “the fundamental right of children to education in an objective, critical and pluralistic manner” will make any great difference to that situation.
Commenting on the Resolution, the Catholic News Agency described it as “an important – although limited – recognition of religious and conscience rights in the public sphere”. The report noted that the Resolution’s calls for states parties to “accommodate religious beliefs in the public sphere” was limited by the proviso that “the rights of others to be free from discrimination are respected and that the access to lawful services is guaranteed” and suggested that there was a concern that Article 9 rights would be viewed as inferior and secondary to abortion and gay rights. Apparently the draft Resolution met strong resistance from Scandinavian delegates, with one Danish representative complaining that it elevated religious rights above other fundamental rights. The Agency commented rather unfavourably on the fact that the reference in the Resolution to restricting religious freedom when it clashed with other rights was inserted into the original draft by way of an amendment.
To which one might reply that, like it or not, that is Realpolitik: partly a matter of consensus-building (which, as I know from personal experience having worked at plenaries of the Parliamentary Assembly on and off for some twenty years, is always a live issue) and partly because it is inevitable that individuals’ rights will sometimes conflict in particular situations. What the domestic courts and the ECtHR have to do is to conduct a balancing exercise: the issue, surely, is not whether they do it but how they do it.