Equality and Human Rights Commission reverses position on religious cases intervention

by Adam Wagner

The Equality and Human Rights Commission (EHRC) has reversed its plans to intervene in two European Court of Human Rights cases about religious discrimination.

Last month the Commission announced that it would intervene in European Court of Human Rights cases on behalf of religious believers who failed to convince the UK courts that they were being discriminated against in the workplace. Two of the proposed interventions – in which the EHRC proposed a “reasonable accommodation” for religion and belief cases (an idea proposed on this blog by Aidan O’Neill QC) – courted controversy, as Alasdair Henderson explained in his post, A leap of faith?

The EHRC is now consulting the public on the cases, but the consultation document reveals that they will now be supporting the UK courts in the cases of Ladele and Mcfarlane, involving the provision of services by religious employees:

We had suggested that our intervention might put forward the idea of extending the concept of reasonable accommodation beyond disability. However, we also know that this idea needs more careful consideration than the timetable for the European Court of Human Rights allows.

Both Ladele and Mcfarlane were cases in which religious employees refusing to provide services to homosexuals on the basis that to do so would contravene their religious principle, involving a marriage registrar and relationship counsellor respectively. The criticism of the EHRC’s initial stance was that whilst it may support believers it appeared to put the organisation at odds with sexual equality.

The reversal of the EHRC’s position will be welcomed by those who thought its reasonable accommodation proposal was too radical. But there are still many unresolved issues in respect of the rights of religious believers, and as I have posted, judges are regularly being asked to make difficult and controversial decisions, particularly in the discrimination law context. The European Court may give some useful guidance to judges attempting to balance the competing rights under article 9, freedom of thought, conscience and religion, and article 14, anti-discrimination.

Now that the cases have reached Strasbourg, it will be interesting to see how the court applies its ‘margin of appreciation’ doctrine, by which states are allowed a certain latitude to set policies according to their own culture and history. The shadow of Lautsi v. Italy, a controversial recent decision in which the court’s Grand Chamber reversed the court’s previous ruling that the presence of crucifixes in Italian classrooms breached human rights law, looms large (see this post). This will be of particular relevance to the other two cases, Eweida and Chaplin, both about the right of people to openly wear crucifixes at work.

One of the fascinating aspects of our semi-federal court of human rights, that is one which incorporates the social and historical context of many different states, is that the court has to find a way of accommodating them all. On issues such as religious discrimination this means allowing for the views of states such as Italy and Spain, where religious observance is still very common, as opposed to the UK, where it not. Indeed, it is easy to imagine the equivalent to the EHRC in Italy or Spain initially taking the opposite view on these cases and being pressured to reverse its position to accommodate religious viewpoints.

Although decisions are not supposed to have wider application. the court will still have those other states in mind, so will have to tread carefully. In the meantime, the EHRC consultation closes on 5th September and responses can be provided by email or post.

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