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‘Vote leave, take control’ was the slogan of almost fiendish simplicity that helped win the Brexit referendum, masking the mendacity and absence of vision that underlay it. The impulses it captures—wresting sovereignty back from remote elites to Westminster, with its proud democratic tradition—echo those that have for years underpinned the opprobrium directed at the European Court of Human Rights in Strasbourg in British public debate.
Retractions in scholarly journals have reached record levels. Doctorates have been removed from politicians and others for plagiarism, there has been tasteless denigration of academic colleagues under cover of academic freedom, researchers have been jailed for fraud, and conflicts of interest involving private industry’s role at universities have generated notoriety.
Human rights law has had a long and tortuous history in the UK, defined by some of the most fascinating cases in legal memory. The case of John Wilkes was a milestone in establishing the right of free speech. In 1763, Wilkes wrote a scathing attack on a speech delivered by King George III when he opened Parliament.
Which books have changed the world? Given our news today, one might expect that books no longer have as great an impact on it. ISIS has Syria in turmoil and refugees are making their way to Europe; the United States is gearing up for an election that may determine the future for many others around the globe; China is changing in rapid and unexpected ways, with political and economic consequences rippling around the world.
Two hundred and ninety-eight passengers aboard Malaysian Airlines flight MH17 were killed when Ukrainian rebels shot down the commercial airliner in July 2014. Because of the rebels’ close ties with the Russian Republic, the international community immediately condemned the Putin regime for this tragedy. Yet, while Russia is certainly deserving of moral and political blame, what is less clear is Russian responsibility under international law. The problem is that international law has often struggled assigning state responsibility when national borders are crossed and two (or more) sovereigns are involved. The essence of the problem is that under governing legal standards, a state could provide enormous levels of military, economic, and political support to another state or to a paramilitary group in another state – even with full knowledge that the recipient will thereby violate international human rights and humanitarian law standards — but will not share any responsibility for these international wrongs unless it can be established that the sending state exercised near total control over the recipient.
The leading caselaw in this area has been handed down by the International Court of Justice (ICJ) but what adds another layer of complexity to the present situation is that the Ukraine and Russia are both parties to the European Convention; it is possible that the European Court of Human Rights (ECtHR) might well provide a different answer.
To be clear, this article concerns itself only with determining Russian responsibility for the downing of MH17. Following this tragic event, approximately five thousand Russian troops took part in what now appears to have been a limited invasion of areas of the Ukraine. Thus, there are elements of both “indirect” and “direct” Russian involvement in the Ukraine, although only the former will be addressed. The larger point involves the legal uncertainty when states act outside their borders and in doing so contribute to the violation of international human rights standards.
International Court of Justice
The two leading cases regarding transnational or extraterritorial state responsibility have been handed down by the International Court of Justice. In Nicaragua v. United States (1986) Nicaragua brought an action against the United States based on two grounds. One related to “direct” actions carried out by US agents in Nicaragua, including the mining of the country’s harbors, and on this claim the Court ruled against the United States. The second claim was based on the “indirect” actions of the United States, namely, its support for the contra rebels who were trying to overthrow the ruling Sandinista regime. Nicaragua’s argument was that because of the very close ties between the United States and the contras, the former should bear at least some responsibility for the massive levels of human rights violations carried out by the latter.
The Court rejected this position employing an “effective control” standard, which in many ways is much closer to an absolute control test. Or to quote from the Court itself: “In light of the evidence and material available to it, the Court is not satisfied that all the operations launched by the contra force, at every stage of the conflict, reflected strategy and tactics wholly devised by the United States” (par. 106, emphases supplied).
Nearly a decade later, the International Court of Justice was faced with a similar scenario in the Genocide Case (Bosnia v. Serbia). The claim made by Bosnia was that because of the deep connections between the Serbian government and its Bosnian Serb allies, the former should have some responsibility for the acts of genocide carried out by the latter. Yet, as in Nicaragua, the ICJ ruled that Serbia had not exercised the requisite level of control over the Bosnian Serbs. Thus, the Court ruled that Serbia was not responsible for carrying out genocide itself, or for directing genocide, or even for “aiding and assisting” or “complicity” in the genocide that occurred following the overthrow of Srebrenica. However, in a part of its ruling that has received far too little attention, the Court did rule that Serbia had failed to “prevent” genocide when it could have exercised its “influence” to do so, and that it had also not met its Convention obligation to “punish” those involved in genocide due to its failure to fully cooperate with the International Criminal Tribunal for the Former Yugoslavia.
Turning back to the situation involving MH17, while no action has yet been filed with the International Court of Justice (and perhaps never will be filed), according to the Nicaragua-Bosnia line of cases any attempt to hold Russia responsible for the downing of MH17 would appear likely to fail for the simple reason that the relationship between the Russian state and its Ukrainian allies was nowhere near as strong as the relationship between the United States and the contras (Nicaragua) or that between the Serbian government and its Bosnian Serb allies (Genocide Case). The point is that if responsibility could not be established in these other cases it is by no means likely that it could be established in the present situation.
European Court of Human Rights
Because Russia and the Ukraine are both parties to the European Convention of Human Rights, what also needs to be considered is how the European Court of Human Rights (ECtHR) might address this issue if a case were brought either under the inter-state complaint mechanism, or (more likely) by means of an individual complaint filed by a family member killed in the crash.
Although the European Court of Human Rights has increasing dealt with cases with an extraterritorial element, in nearly every instance the claim has been based on European states carrying out “direct” actions in other states – whether it be NATO forces dropping bombs in Serbia and killing civilians on the ground (Bankovic), or Turkish officials arresting a suspected terrorist in Kenya (Ocalan), or British troops killing civilians in Iraq (Al-Skeini) – rather than instances where the Convention states have acted “indirectly.” The most pertinent ECtHR case is Ilascu v. Russia and Moldova where the applicants (Moldovan citizens) claimed they were arrested at their homes in Tiraspol by security personnel, some of whom were wearing the insignia of the former USSR. Unlike the ICJ’s “effective control” standard, the ECtHR ruled that Russia had exercised what it termed as “effective authority” or “decisive influence” over paramilitary forces in Moldova and because of this they bore responsibility for violations of the European Convention suffered by the applicants. Thus, on the basis of Ilascu, there is at least some possibility that due to the “effective authority” or the “decisive influence” that Russia appeared to exercise over its Ukrainian rebel allies, the ECtHR, unlike the ICJ, could assign responsibility to Russia for the downing of MH17.
Conclusion
Notwithstanding the immediate international condemnation of the Putin regime following the MH17 tragedy, international law seems to exist in a totally removed from international opinion and consensus. Under the caselaw of the International Court of Justice, Russia would appear not to be responsible for the downing of MH17 on the basis that it would be difficult to establish that the Russian government had exercised the requisite level of “effective control” over its Ukrainian rebel allies. On the other hand, if a case were brought before the European Court of Human Rights, there is at least some chance of establishing Russian responsibility on the basis of the Court’s previous ruling in Ilascu, although it should be said that this is not a particularly strong precedent.
The larger point is to ask why state responsibility is so difficult to establish when international borders are crossed and states act in another country, at least indirectly, as in the present situation. The key element ought to be the extent to which a state has acted in a way that leads to violations of international human rights and humanitarian law standards. Employing such a standard, it would be eminently clear – would it not? – that Russia would be at least partly responsible because of its strong relationship with Ukrainian rebels that were both armed (by Russia) and dangerous, and which had already shown a complete disregard for international law.
On the subject of competition law inspections and similar procedures, tensions have been building between the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (EUCJ). The latest case-law appears like a step in the direction of reconciling the two. One of the crucial points that must be resolved in the future is the lawfulness of the authorities’ extensive digital evidence gathering during on-site inspections. Such searches are nowadays a matter of routine, although the law seems to be lagging behind. Not only must the lawfulness of those measures be resolved, but also the matter of procedure. Companies subject to inspections have gone to court repeatedly in order to obtain up-front judicial control of specific measures such as copying and mirroring of hard drives and servers.
Delta Pekárny concerned a competition law inspection. The inspection began with an examination of digital correspondence. Delta Pekárny was subsequently fined for refusing to allow an in-depth examination of its data. It challenged that decision, arguing, among other points, that it was contrary to domestic law and to the European Convention on Human Rights (ECHR) for the Czech Competition Authority to carry out an inspection without having received prior authorisation from a court. In the judgment, the ECtHR makes references to EU law, to a comparative study of the investigative procedures prevailing in all Member States, and to the Commission’s inspection powers. The ECtHR considered that in the absence of a prior judicial authorisation by a judge, an effective control afterwards of the necessity of the measure, and rules on destruction of copies made, the procedural guarantees were insufficient to prevent the risk of an abuse of powers. There had been a violation of Article 8 of the ECHR (right to respect for private and family life, home and correspondence).
The ECtHR’s legal assessment in Delta Pekárny cannot, in my opinion, be seen as a criticism of the investigation procedure under Regulation 1/2003, a procedure that has been copied in several Member States. Rather, the outcome seems specific to the procedural rules applicable in the Czech Republic.
Delta Pekárny builds partly on Robathin, a case that concerned a search warrant at the office of an Austrian practicing lawyer who was suspected of aggravated theft, aggravated fraud and embezzlement. The warrant was issued by an investigating judge in the context of criminal proceedings. All files of the lawyer’s computer system were copied. The ECtHR held that domestic law and practice must afford adequate and effective safeguards against any abuse and arbitrariness. There should be particular reasons to allow the search of all data, having regard to the specific circumstances prevailing in a law office. There were no such reasons either in the search warrant itself or in any other document. The ECtHR found that the seizure and examination of all data went beyond what was necessary to achieve the legitimate aim. There was a violation of Article 8 of the ECHR.
The Robathin case concerned classic or hard core criminality. Depending on the circumstances, a competition law fine can be considered a criminal penalty. Competition law cases nevertheless lean more towards the administrative enforcement side, and this can influence the procedural requirements.
Part of ECHR in Strasbourg, by James Russell. CC-BY-SA-2.0 via Flickr
A hint at how the ECtHR may regard competition law dawn raids came in Bernh Larsen Holding. The case concerned a tax inspection.Three companies used a server jointly and the Norwegian tax authorities copied the entire sever content. The inspection order was adopted without prior judicial authorisation. Volumes of surplus information without importance for the tax inspection had been copied, including private correspondence and business secrets. The ECtHR accepted considerations of efficiency of the tax audit, but made clear that this did not confer on the tax authorities an unfettered discretion. The Court assessed whether the measure was necessary and proportionate. There was a wider margin of appreciation since the measure was aimed at legal persons and not at an individual. The nature of the interference was not of the same seriousness and degree as in the case of search and seizure carried out under criminal law since the consequences of a tax subject’s refusal to cooperate were exclusively administrative. The outcome was that the Norwegian order had been subject to important limitations and was accompanied by effective and adequate safeguards against abuse. There was no violation of Article 8 of the ECHR.
The judgments of the ECtHR can be seen in relation to those of the EUCJ. In Nexans, the Commission carried out a dawn-raid and decided to remove four DVD-ROM discs and a copy of the hard drive of the laptop of an employee of Nexans France, for later review at its premises in Brussels. The inspection decision, as well as the mirroring measures and other measures, were appealed to the General Court. Nexans’ claim relating to the Commission’s decision to remove copies of certain computer files and of the hard drive, was deemed inadmissible. After reminding that Nexans could bring its claims within an appeal against a final decision, the General Court pointed out that Nexans could also bring an action for damages against the Commission if it believed that copying of several computer files and of a hard drive for later examination in its offices was illegal and had caused harm. There was consequently no assessment in substance.
“Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ”
An outcome which appears opposite can be observed in Deutsche Bahn. Deutsche Bahn challenged three Commission inspection decisions. One of the claims was that Deutsche Bahn’s defence rights had been infringed in view of irregularities during the first inspection. According to Deutsche Bahn, the second and third inspections were based on information that had been unlawfully obtained during the first inspection. Among other things, the Commission had searched certain e-mails that were clearly unrelated to the subject-matter of the first inspection. Allegedly the Commission officials had also used certain keywords unrelated to the inspection during their electronic search. The General Court looked into all those aspects in relative detail and finally rejected the plea as unfounded. The General Court’s judgment has been appealed.
While the General Court’s judgment in Nexans seems somewhat difficult to reconcile with the case-law of the ECtHR, the approach in Deutsche Bahn appears to be more in line with the methodology envisaged by the ECtHR in Robathin and Bernh Larsen Holding. The facts of Delta Pekárny may be too specifically related to Czech domestic law to be of general application. Nevertheless, the ECtHR’s approach is telling. Step by step, the Court in Strasbourg is moving into domains that have, for many years, primarily been a matter for the EUCJ. This as such, should come as no surprise. The EUCJ has made references to the ECHR for decades in competition law rulings. Can we in the years to come expect to see a mutual alignment?
Featured image credit: FW Pomeroy’s statue of Justice atop the Old Bailey. Photo by Ben Sutherland. CC-BY-2.0 via Flickr
On 1 July 2014, the Grand Chamber of the European Court of Human Rights (ECHR) announced its latest judgment affirming France’s ban on full-face veil (burqa law) in public (SAS v. France). Almost a decade after the 2005 controversial decision by the Grand Chamber to uphold Turkey’s headscarf ban in Universities (Leyla Sahin v. Turkey), the ECHR made it clear that Muslim women’s individual rights of religious freedom (Article 9) will not be protected. Although the Court’s main arguments were not the same in each case, both judgments are equally questionable from the point of view of protecting religious freedom and of the exclusion of Muslim women from public space.
The recent judgment was brought to the ECHR by an unnamed French woman known only as “SAS” against the law introduced in 2011 that makes it illegal for anyone to cover their face in a public place. Although the legislation includes hoods, face-masks, and helmets, it is understood to be the first legislation against the full-face veil in Europe. A similar ban was also passed in Belgium after the French law. France was also the first country to ban the wearing of “conspicuous religious symbols” – directed at the wearing of the headscarf in public high schools — in 2004. Since then several European countries have established policies restricting Muslim religious dress.
The French law targeted all public places, defined as anywhere not the home. Penalties for violating the law include fines and citizenship lessons designed to remind the offender of the “republican values of tolerance and respect for human dignity, and to raise awareness of her penal and civil responsibility and duties imposed life in society.”
SAS argued the ban on the full-face veil violated several articles of the European Convention and was “inhumane and degrading, against the right of respect for family and private life, freedom of thought, conscience and religion, freedom of speech and discriminatory.” She did not challenge the requirement to remove scarves, veils and turbans for security checks, also upheld by the ECHR. The ECHR rejected her argument and accepted the main argument made by the government: that the state has a legitimate interest in promoting a certain idea of “living together.”
By now, it is clear that Article 9 of the European Convention does not protect freedom of religion when the subject is a woman and the religion is Islam. While this may seem harsh, consider the ECHR’s 2011 judgment in Lautsi v. Italy, which found the display of the crucifix in Italian state schools compatible with secularism.
In Lautsi case, the Court argued that the symbol did not significantly impact the denominational neutrality of Italian schools because the crucifix is part of Italian culture. Human rights scholars have not missed the contrast between the Italian case and the earlier 2005 decision in Leyla Sahin v Turkey where the Court found that the wearing of the headscarf by students was not compatible with the principle of laicité or secularism.
The Court did not make a value judgment in SAS case about Islam, women’ rights in Islamic societies, or gender equality, as it did in earlier cases where they upheld bans on the wearing of the headscarf by teachers and students in France, Turkey and Switzerland. In all cases involving Islamic dress codes, the ECHR emphasized the “margin of appreciation” rule, which permits the court to defer to national laws.
The ECHR acted politically and opportunistically not to challenge France’s strong Republicanism and principles of laicité, sacrificing the rights of the small minority of Muslims who wear the full-face veil. Rather than protecting the individual freedom of the 2000 women, the ECHR protected the majority view of France.
The ECHR is the most powerful supra national human rights court and its decisions have widespread impact. Several countries in Europe, such as Denmark, Norway, Spain, Austria, and even the UK, have already started to discuss whether to create similar laws banning the burqa in public places. This raises concerns that cases related to the cultural behavior and religious practices of minorities could shift public opinion dangerously away from the principles of multiculturalism, democracy, human rights and religious tolerance.
The most recent law bans the full-face veil, but tomorrow, the prohibitions may be against halal food, circumcision, the location of a mosque or the visibility of a minaret; even religious education might be banned for reasons of public health, security or cultural integration. Muslims, Roma, and to some extent Jews and Sikhs, are already struggling to be accepted as equal citizens in Europe, where right wing extremism is rising, in a situation of economic crisis.
The ECHR should be extremely careful in its decisions, given the growth of nationalism, xenophobia, and anti-immigrant sentiment in Europe.Considering this context, the EHCR’s main argument in this latest judgment is worrisome, since it accepted France’s view that covering the face in public runs counter to the society’s notion of “living together,” even though this is not one of the principles of the European Convention.
The Court recognized that the concept of “living together” was problematic (Para 122). And, even in using the “wide margin of appreciation” rule, the Court acknowledged that it should “engage in a careful examination” to avoid majority’s subordination of minorities. Considering the Court’s own rules, the main reasoning for the full face veil ban—“living together” seems to be inconsistent with the Court’s own jurisprudence.
Further concerns were raised about Islamophobic remarks during the adoption debate of the French Burqa Law, and evidence that prejudice and intolerance against Muslims in French society influenced the adoption of the law. Such concerns were more strongly raised by the two dissenting opinions. The dissent found the Court’s insensitivity to what’s needed to ensure tolerance between the vast majority and a small minority could increase tensions (Para 14). The dissenting opinion was especially critical of prioritizing “living together,” not even a Convention principle, over “concrete individual rights” guaranteed by the Convention.
While the integration of Muslims and other immigrants across Europe is a legitimate concern, it is vitally important the ECHR’s constructive role. The decision in SAS v France is a dangerous jurisprudential opening for future cases involving the religious and cultural practices of minorities. The French burqa law has created discomfort among Muslims. By upholding the law, the European court deepens the mistrust between the majority of citizens and religious minorities.
On 1 July 2014, the Grand Chamber of the European Court of Human Rights held that France’s ban on wearing full-face veils in public pursued a legitimate aim because it reflected a “choice of society”. Although the Court found that the blanket prohibition amounted to an interference with the religious rights of the minority in France that wore the full-face veil, it was justified because it protected the rights of others to have the option of facial interaction with that minority. The Court accepted that this right of potential facial interaction forms part of the minimum standards of “living together” in French society and outweighs the right of the minority to express their religious beliefs through wearing a full-face veil.
The result of the decision is that ‘SAS’, the applicant Muslim woman in the case, was held not to have suffered a violation of her religious rights under the European Convention on Human Rights. S.A.S. v France is another recent example of the controversies which can arise in the field of law and religion but its significance goes beyond that: the case has given rise to a full and carefully-reasoned judgment from the Strasbourg Court which revisits and, in places, develops its jurisprudence in this difficult area of the law.
The Decision
Article 9 is the principal protection available for religious freedom under the Convention. When examining a potential Article 9 violation, the Strasbourg Court must establish whether the act complained of – in this case, the ban on the veil – interferes with the applicant’s religious rights. If so, the Court will then consider whether or not that interference is: (1) prescribed by law; (2) pursuant to a legitimate aim; and (3) necessary and proportionate in a democratic society.
In S.A.S, the Court found that the ban was prescribed by French law (the Law No. 2010-1192) and constituted an interference with the applicant’s religious beliefs. The critical issues for the Court were whether or not the blanket prohibition was: (i) in pursuit of a legitimate aim; and, if so, (ii) necessary in a democratic society, that is to say, proportionate.
The second paragraph of Article 9 sets out the only legitimate grounds on which religious rights can be interfered with: public safety, public order, health or morals, or for the protection of the rights and freedoms of others. The Court dismissed the French Government’s arguments based on public safety, and considered the other three arguments put forward – that the veil fell short of the minimum requirements of life in society; that it harmed equality between men and women; and that it was a manifestation of disrespect for human dignity – under the heading of the ‘rights and freedoms of others’. The Court rejected the dignity and gender equality arguments, and focused on whether the requirements of “living together” could be a legitimate aim. The Court found that they could. The core of its reasoning is at §122 of the judgment:
“[The Court] can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing in those places which would call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. The Court is therefore able to accept that the barrier raised against others by a veil concealing the face is perceived by the respondent State as breaching the right of others to live in a space of socialisation which makes living together easier.”
The Court’s assessment of proportionality ultimately came down to the fact that the sanctions were, in the Court’s view, light (albeit criminal) and reflected a choice of society. France’s margin of appreciation in this area was such that it could, and should, make this choice without interference from an international court.
The Dissent
The joint partly dissenting opinion of Judges Nussberger and Jäderblom voiced a number of criticisms of the majority approach, of which the following are an important few:
The concept of ‘living together’ as a right is ‘far-fetched and vague’.
It seems unlikely that the veil itself is at the root of the French ban, rather than the philosophy linked to it. French parliamentary reports revealed that the true concerns are linked to the meaning of the veil: as ‘a form of subservience’, because of its ‘dehumanising violence’, and because of the fact that it represents ‘the self-confinement of any individual who cuts himself off from others whilst living among them’.
The opinion of the majority is wrong to ignore an individual’s right to express herself, or her beliefs, in a way that shocks others. The Court’s mandate is to protect expressions of rights which ‘offend, shock and disturb’, as well as those that are favourably received.
A Group of Women Wearing Burkas. Afghanistan women wait outside a USAID-supported health care clinic. Photo by Nitin Madhav (USAID). Public domain via Wikimedia Commons.
The Discussion
Some actions, whether religiously motivated or otherwise, could be so objectively offensive to the operation of society that they require limitation in the name of ‘living together’. However, where the action in question is non-violent and generally without external impact, extreme care must be exercised in establishing why society’s right not to be exposed to an act outweighs the individual’s right to perform it. This is all the more so the case where the action in question is an expression of a religion which, as the judgment acknowledges, can too often be subject to social prejudice.
One of the key difficulties with the opinion of the majority in S.A.S is the extent to which the Strasbourg Court allows ‘society’s choice’ to govern state action where distinctly unpopular rights are threatened. The Convention seeks to establish and to enforce European standards of protection for the rights of every individual. The Convention is an instrument which supports ‘democratic societies’. This is not in the political sense of allowing the dominant collective voice to decide the fate of all; societies are capable of achieving that without assistance. The Convention should ensure that the voices of all groups and individuals in the society – popular or otherwise – are heard, and afforded proportionate weight where state aims threaten individual rights.
As the partly dissenting opinion points out, Western societies are fearful of what the veil connotes. The grounds of argument rejected by the Court were in all likelihood the more honest ones: there was clear social discomfort about a practice which ran counter to ideas of gender equality and human dignity. The Court rightly discounted such arguments where the applicant could show that wearing the veil was a matter of choice. Absent the issue of force, it is simply a question of whether covering the face is so offensive to others that it outweighs the religious importance of the action. Some may well ask whether or not the S.A.S judgment has explained why the alleged social offence caused is more important than the interference with a right which is at the core of international protection.
The majority judgment is significant also for the arguments that the Court rejected. Gender equality was not accepted as a legitimate aim by the Court. This is a shift. In its previous case law on the Islamic headscarf, the Court had stated that “it appears difficult to reconcile the wearing of an Islamic headscarf with the message of tolerance, respect for others and, above all, equality and non-discrimination”: Dahlab v Switzerland; Leyla Sahin v Turkey. The position has changed:
“a State Party cannot invoke gender equality in order to ban a practice that is defended by women […] in the context of the exercise of rights enshrined in those provisions, unless it were to be understood that individuals could be protected on that basis from the exercise of their own fundamental rights and freedoms” (S.A.S., §119).
Similarly, the Court rejected the State’s public safety argument, finding that in the absence of a general threat to public safety, a blanket ban was a disproportionate interference with the applicant’s Article 9 right. That finding is in contrast to the Court’s earlier decision in Mann Singh v France, when the Court accepted France’s restrictions of religious rights on the grounds of public safety without requiring evidence of the necessity of the restriction.
Although this decision accords with the Court’s general approach to the protection of religious dress under Article 9, it significantly shifts the focus onto the choices of individual societies as legitimate restrictions on religious rights. Much attention was given by the Court to the particular consensus of French society as a counterbalance to the identified right of a religious minority; this could represent a considerable enhancement of the scope of the ‘rights and freedoms of others’ limitation under Article 9(2). It remains to be seen how the Strasbourg Court will define the limits of the democratic choice of Member States in future decisions: this is, and will remain, a difficult and developing area of the law.
Can Yeginsu is a barrister at 4 New Square Chambers in London. He is the co-author (with Sir James Dingemans, Tom Cross and Hafsah Masood) of The Protections for Religious Rights: Law and Practice. Jessica Elliott is a barrister at One Crown Office Row Chambers in London.
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When a religious believer wears a religious symbol to work can their employer object? The question brings corporate dress codes and expressions of religious belief into sharp conflict. The employee can marshal discrimination and human rights law on the one side, whereas the employer may argue that conspicuous religion makes for bad business.
The issue reached the European Court of Human Rights in 2013 in a group of cases (Eweida and Others v. United Kingdom), following a lengthy and unsuccessful domestic legal campaign, brought by a group of employees who argued their right of freedom of religion and belief (under Article 9 of the Convention) had not been protected when the UK courts favoured their employers’ interests.
Nadia Eweida, an airline check-in clerk, and Shirley Chaplin, a nurse, had been refused permission by their respective employers, British Airways and an NHS trust, to wear a small cross on a necklace so that it was visible to other people. The employer’s rationale in each case was rather different. British Airways wanted to maintain a consistent corporate image so that no ‘customer-facing staff’ should be permitted to wear jewellery for any reason. The NHS trust argued that there was a potential health and safety risk if jewellery were worn by nursing staff – in Ms Chaplin’s case a disturbed patient might ‘seize the cross’ and harm either themselves or indeed Ms Chaplin.
Both applicants argued that their sense of religious obligation to wear a cross outweighed the employer’s normal discretion in setting a uniform policy. They also argued that their respective employers had also been inconsistent because their uniform policies made a number of specific accommodations for members of minority faiths, such as Muslims and Sikhs.
A major difficulty for both Eweida and Chaplin was the risk that their cross-wearing could be dismissed as a personal preference rather than a protected manifestation of their beliefs. After all many – probably most – Christians do not choose to wear the cross. The UK domestic courts found that the practice was not regarded as a mandatory religious practice (applying a so-called ‘necessity’ test) but rather one merely ‘motivated’ by religion and not therefore eligible for protection. This did not help either Eweida or Chaplin as both believed passionately that they had an obligation to wear the cross to attest to their faith (in Chaplin’s case this was in response to a personal vow to God). The other major difficulty for both applicants was that the Court had also historically accepted a rather strange argument that people voluntarily surrender their right to freedom of religion and belief in the workplace when they enter into an employment contract, and so the employer has discretion to set its policies without regard to interfering with its employees religious practices. If an employee found this too burdensome, then he or she could protect their rights by resigning and finding another job. This argument, ignoring the realities of the labour market and imposing a very heavy burden on religious employees, has been a key reason why so few ‘workplace’ claims have been successful before the European Court.
Arguably the most significant aspect of the judgment was that the religious liberty questions were in fact considered by the Court rather than being dismissed as being inapplicable in the workplace (as the government and the National Secular Society had both argued). The Court specifically repudiated both the necessity test and the doctrine of ‘voluntary surrender’ of Article 9 rights at work. As a result, it has opened the door both to applications for protection for a much wider group of religious practices in the future and for claims relating to employment. From a religious liberty perspective this is surely something to welcome.
Nadia Eweida’s application was successful on its merits. It is now clear therefore that an employer cannot over-ride the religious conscience of its staff due to the mere desire for uniformity. However, Chaplin was unsuccessful, the Court essentially finding that ‘health and safety’ concerns provided a legitimate interest allowing the employer to over-ride religious manifestation. This is disappointing, particularly since evidence was presented that the health and safety risks of a nurse wearing a cross were minimal and that, in this case, Chaplin was prepared to compromise to reduce them still further. Hopefully this aspect of the judgment (unnecessary deference to national authorities in the realm of health and safety) will be revisited in future.
Whether that happens or not it is clear that religious expressions in the workplace now need to be approached differently after the European Court’s ruling. The idea that employees must leave their religion at the door has been dealt a decisive blow From now on, if corporate policy over-rides employees’ religious beliefs, then employers will be under a much greater obligation to demonstrate why, if at all, this is necessary.
Andrew Hambler and Ian Leigh are the authors of “Religious Symbols, Conscience, and the Rights of Others” (available to read for free for a limited time) in the Oxford Journal of Law and Religion. Dr Andrew Hambler is senior lecturer in human resources and employment law at the University of Wolverhampton. His research focusses on how the manifestation of religion in the workplace is regulated both at an organisational and at a legal level. Andrew is the author of Religious Expression in the Workplace and the Contested Role of Law, a monograph due for publication in November 2014. Ian Leigh is a Professor of Law at Durham University. He has written extensively on legal and human rights questions concerning religious liberty. He is co-author of Rex Ahdar and Ian Leigh, Religious Freedom in the Liberal State (2nd edition, OUP, 2013).
The Oxford Journal of Law and Religion is hosting its second annual Summer Academy in Law and Religion this coming June. The title of this year’s academy is “Versions of Secularism – Comparative and International Legal and Foreign Policy Perspectives on International Religious Freedom.” The meeting will take place June 23 – 27 at St. Hugh’s College, Oxford. Click for more details about the conference, confirmed speakers, and registration.
The Oxford Journal of Law and Religion publishes a range of articles drawn from various sectors of the law and religion field, including: social, legal and political issues involving the relationship between law and religion in society; comparative law perspectives on the relationship between religion and state institutions; developments regarding human and constitutional rights to freedom of religion or belief; considerations of the relationship between religious and secular legal systems; empirical work on the place of religion in society; and other salient areas where law and religion interact (e.g., theology, legal and political theory, legal history, philosophy, etc.).
The sentences of those who murder more than one person, or who kill in particularly gruesome circumstances are naturally the stuff of headlines. So it was again on 18 February when a specially constituted bench of the Court of Appeal, headed by the Lord Chief Justice, ruled that there is no legal bar on whole life orders for particularly heinous offences. In such cases, judges can continue to order that offenders deserve to remain in prison for the rest of their lives.
The case arose because in July 2013, the Grand Chamber of the European Court of Human Rights found in Vinter and others v United Kingdom that even offenders on whom whole life orders had been imposed had to have a prospect of release. To deny them this hope meant that the punishment was inhuman and degrading, thus infringing the prohibition of such punishments in Article 3 of the European Convention of Human Rights. It had to be clear to offenders at the time of sentencing that if circumstances changed and there was no further justification for continuing their imprisonment, there was an appropriate procedure in place for reconsidering continued detention. English legislation allowing for the release of prisoners facing whole life sentences only on compassionate grounds was deemed insufficient to give prisoners hope as the Secretary of State for Justice had stated in the ‘lifers’ manual’ that he would only consider the release on compassionate grounds of prisoners who were terminally ill or seriously incapacitated. In the view of the European Court, allowing someone out of prison only when they are at death’s door was not ‘release’ in the full sense of the term. This judgment left some English courts uncertain about whether they should impose whole life sentences, particularly as the UK government declared that it was reluctant to change the law or policy in terms of which it should be applied.
The Court of Appeal’s finding was presented by a large section of the press as a ruling that prisoners subject to life orders could be denied all prospect of release. Even the BBC led with ‘Court of Appeal upholds whole-life principle’.
The reality is far more complex. The European Court of Human Rights never held that courts could not sentence someone to whole life imprisonment. The confirmation that judges could continue to impose this sentence was therefore unsurprising. What the European Court had established was the principle that, even where such sentences were imposed, there still had to be a prospect of release for the offender who could demonstrate that his continued detention was no longer justified, because, for example he no longer posed a risk to society.
Close reading of the judgment shows that the Court of Appeal accepted this principle. It disagreed with the European Court only on whether the powers of the Secretary of State for Justice were so limited that he might not be able to release someone when required to do so. According to the Court of Appeal, the European Court had been misled by the lifers’ manual, which wrongly purported to limit the release powers of the Secretary of State. The Court of Appeal explained that as a matter of law, the Secretary of State was required to exercise his powers in conformity with the European Convention on Human Rights and the common law. This meant that in every case where a prisoner claims that there are exceptional circumstances that justify his release from a whole life sentence, the Secretary for State will have to consider the claim and give a reasoned decision for allowing or rejecting it.
This outcome is rich in irony. Chris Grayling, the Secretary of State for Justice, has been scathingly critical of the European Court of Human Rights’ decision in the Vinter case, and saw the decision of the Court of Appeal as restoring whole life sentences. He will now be responsible in his official capacity for the procedure which is designed to ensure prisoners subject to whole life orders retain a prospect of release, something which he resisted by declining to amend the lifers’ manual. Nor will the Secretary of State be able to allow his antipathy to the release of such prisoners to influence his decisions, which, the Court of Appeal emphasised, will be subject to the rigours of judicial review as required by the common law.
Together with Pete Weatherby QC and Simon Creighton, I argued in a recent article in the Human Rights Law Review that the consequences of the European Court’s judgment in the Vinter case are far-reaching. In order to ensure that prisoners serving whole life sentences have a hope of release, prison regimes will have to provide them with opportunities to prepare themselves to lead a crime free life; they must have an opportunity to rehabilitate.
Moreover, these release procedures must meet the requirements of due process. We recommend that the Secretary of State refer the release applications of prisoners serving whole life sentences to the Parole Board. Although current law, as interpreted by the Court of Appeal, would allow him to take the final decision in such cases, we propose that he should give the Parole Board the power to decide for it is fundamentally wrong for a politician to have the final say over whether someone should be released.
Finally, we suggest that the Secretary of State announces as a matter of urgency when whole life sentences will be reconsidered routinely. We suggest that this should happen after no more than 25 years have been served and at regular intervals thereafter.
In the end, what matters is that even the worst and most reviled offenders are treated fairly. Justice requires that regard be had for their rights too. It should not have required Europe to spell out that it was necessary to do so. The Court of Appeal has now gently reminded the Secretary of State of his common law duties in this regard too. One can only hope that misplaced opposition to European intervention does not lead to a failure to act.
Human Rights Law Review promotes awareness, knowledge, and discussion on matters of human rights law and policy. The Review publishes critical articles that consider human rights in their various contexts, from global to national levels, book reviews, and a section dedicated to analysis of recent jurisprudence and practice of the UN and regional human rights systems.
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Nadia Eweida, an airline check-in clerk, and Shirley Chaplin, a nurse, had been refused permission by their respective employers, British Airways and an NHS trust, to wear a small cross on a necklace so that it was visible to other people. The employer’s rationale in each case was rather different. British Airways wanted to maintain a consistent corporate image so that no ‘customer-facing staff’ should be permitted to wear jewellery for any reason. The NHS trust argued that there was a potential health and safety risk if jewellery were worn by nursing staff – in Ms Chaplin’s case a disturbed patient might ‘seize the cross’ and harm either themselves or indeed Ms Chaplin. 
Which books have changed the world? Given our news today, one might expect that books no longer have as great an impact on it. ISIS has Syria in turmoil and refugees are making their way to Europe; the United States is gearing up for an election that may determine the future for many others around the globe; China is changing in rapid and unexpected ways, with political and economic consequences rippling around the world.
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