On 30 September the Parliamentary Assembly of the Council of Europe [PACE] (not to be confused with the European Parliament) agreed a Resolution on freedom of religion: the report on which it was based is available here. The Resolution noted the renewed importance of religion in European societies but expressed great regret and anxiety that the growth of non-European faiths gave rise to “tensions, lack of understanding and suspicion, and even to xenophobic attitudes, extremism, hate speech and the most despicable violence”. It noted that freedom of thought, conscience and religion was an established, universal and inviolable human right under the UDHR and the ECHR and, as such, “non-negotiable”.
Religious affiliation, for many European citizens, was a key element of their identities. That affiliation was also expressed through worship and compliance with religious practices; and freedom to live according to those practices was one element of the right to freedom of religion safeguarded by Article 9 ECHR:
“That right coexists with the fundamental rights of others and with the right of everyone to live in a space of socialisation which facilitates living together. That may justify the introduction of restrictions on certain religious practices; however, in conformity with Article 9.2 of the European Convention on Human Rights, the right to freedom of religion can only be submitted to those limitations which, as prescribed by law, constitute necessary measures, 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. States Parties to the Convention should also strive to find a fair balance between conflicting interests resulting from the exercise of freedom of thought, conscience and religion, and other human rights and fundamental freedoms, such as the right to respect for private and family life, the right to freedom of expression and the prohibition of discrimination”.
The principle of secularity did not require the elimination of religion from social space;
“quite the contrary, this principle, properly interpreted and implemented, protects the possibility for the different beliefs, religious and non-religious, to coexist peacefully while all parties respect shared principles and values”.
Legislatures and governments had to take account of the fact that political decisions taken in the name of the “neutrality of the State” might, in practice, give rise to disguised discrimination against minority religions – which was incompatible with the right to freedom of religion and the principle of secularity. The Assembly was also aware that certain issues – wearing of full-face veils, circumcision of young boys and ritual slaughter – were divisive and that there was was no consensus among states parties on those matters.
- the Assembly invited states parties to seek “reasonable accommodation” with a view to guaranteeing freedom of religion that was effective rather than merely formal and to ensure that their neutrality remained inclusive and diversity-friendly.
- referring to Resolution 1952 (2013) on children’s right to physical integrity, “out of a concern to protect children’s rights which the Jewish and Muslim communities surely share” the Assembly recommended that member states should provide that ritual circumcision of children should not to be allowed unless practised by a person with the requisite training and skill and “in appropriate medical and health conditions” [sic: the French text is des conditions médicales et sanitaires adéquates].
- on ritual slaughter, the Assembly was not convinced that legislation prohibiting the practice was really necessary or that it would be the most effective way of ensuring the protection of animals; and it noted that the European Convention for the Protection of Animals for Slaughter (ETS No. 102) and the European Union’s Council Regulation (EC) No 1099/2009 on the protection of animals at the time of killing do not prohibit it.
- on education, it called for families, the media and cultural and religious communities themselves, to “support the development of open-minded individuals, capable of critical thinking and of constructive dialogue with others” and fight against intolerance on the Internet: “School should also be a meeting point and a place for constructive dialogue between individuals of different – religious or secular – beliefs”.
Recalling its Recommendation 1962 (2011) on the religious dimension of intercultural dialogue, the Assembly recommends that member states:
- ensure that religious communities and their members were able to exercise the right to freedom of religion without impediment and without discrimination, in accordance with Article 9 ECHR, and make sure, inter alia, that religious communities and their members should be able to. practise their faith publicly and freely, manage welfare institutions (such as hospitals and care homes) and schools and places of education;
- ensure that adherents of religions should be free publicly to express their views without censorship and exercise the right to freedom of expression, freedom of peaceful assembly and the freedom to use media;
- promote the social integration of religious minorities;put into practice a “secularity of recognition” and treat religious organisations as partners in the development of inclusive and mutually supportive societies, while respecting the principle of the independence of politics from religion and the rule of law;
- develop projects in collaboration with religious communities to promote shared values and “living together” and involve them in combating extremism;
- encourage joint projects, inter alia with non-religious associations, to strengthen the social fabric;
- ensure that public service media “firmly oppose any form of intolerance and discrimination based on religion or beliefs and contribute not only to fighting stereotypes, but also to upholding the vision of a pluralist, intercultural and inclusive democratic society”;
- promote school and extracurricular opportunities for people of different beliefs to meet and talk so that they can learn to express their religious identity without fear and without provoking others; and
- co-operate with religious communities so that the teaching of religion becomes an opportunity for reciprocal listening and for developing critical thinking, including within the religious communities themselves.
PACE Resolutions are merely advisory (unlike Recommendations, which require a two-thirds majority and receive a formal response from the Council of Ministers). That said, this latest Resolution seems to represent something of a softening of the rather secularist, laïc position previously adopted by the Assembly in Resolution 1846 (2011) on combating all forms of discrimination based on religion and Recommendation 1804 (2007) on state, religion, secularity and human rights.
It is worth noting, however, that “living together” [vivre ensemble] seems to be edging its way into mainstream discourse on religious rights within the Council of Europe. Stephanie Berry in Does Anything Remain of the Right to Manifest Religion? and Lucy Vickers in Conform or be confined: S.A.S. v France both pointed out that “living together” was not a concept to be found in the ECHR and concluded that it provided very weak support for the judgment in SAS v France  ECHR 695 which upheld the French face-veil ban. My own view at the time was that the judgment SAS was just a further sign that the ECtHR was losing its nerve – and it certainly sits oddly with PACE’s latest declaration that freedom of thought, conscience and religion is “non-negotiable”.
With thanks to Howard Friedman at Religion Clause for the lead.