European Court Judgment: Big Steps Forward But Further To Go

18 January 2013

The European Court of Human Rights published its judgment on Tuesday in the cases of four UK Christians, including Shirley Chaplin and Gary McFarlane.

Steps Forward

The Court held that Nadia Eweida’s ‘freedom of thought, conscience and religion’ had been infringed by British Airways’ decision to prevent her from wearing her cross visibly.

In the other cases, the European Court decided that decisions of the UK Courts were within the ‘margin of appreciation’ (discretion) that it allows to national Courts – but in so doing it challenged many of the principles adopted by UK Courts and asserted by the British government.

  • So for example, the UK Government had made the remarkable assertion that the cross was not a generally recognised Christian symbol. It also suggested that since wearing the cross is not compulsory for Christians, it is not a protected freedom. The European Court ruled that, in principle, wearing the cross is an expression of Christian faith and so is a freedom to be protected!
  • Again, the UK Courts had held that beliefs about marriage as between a man and a woman was not a core component of Christian belief and so not protected. The European Court said that these beliefs were part of Gary and Lillian’s Christian identity and so were in principle protected!
  • The British Government suggested that because the individuals were free to resign and find other jobs, there had been no infringement of their freedom of religion – in other words, ‘your freedom to resign secures your freedom of religion’. The European Court ruled that ‘freedom to resign and find another job’ is not sufficient to guarantee religious freedom.

These are significant breakthroughs and will be a great help in contending for Christian freedoms in the UK Courts in the future.

Further to Go

However, it was very disappointing that in Shirley, Lillian and Gary’s case, the Court ruled that, although their religious freedom had been infringed, the circumstances had justified that interference.

In Shirley’s case, ‘Health and Safety’ was given as the justification. The European Court said that it was not in a position to examine the application of the Health and Safety policy. It had to assume that it was justified, as the UK Courts had suggested. However, no credible Health and Safety risk was ever demonstrated by the hospital.

In the case of Lillian and Gary, the European Court said that it was necessary to restrict their freedom in order to protect the freedom of others.

However, in both cases, it would have been possible to accommodate Gary and Lillian’s conscience, without there being any danger of anyone being denied a service. This important point will continue to be made.

Christian Legal Centre Comment

Reflecting on Tuesday’s judgment Andrea Williams, Director of the Christian Legal Centre, writes:

“I am not disheartened by these cases. In fact quite the opposite. Our domestic courts were beginning to develop impossible tests on what constitutes manifestation of Christian faith. They did not even accept the cross as a Christian symbol or the belief in sexual purity as a conscience issue for Christians. The European Court  of Human Rights has turned this jurisprudence on its head. The European Court has stated categorically that such beliefs flow from Christian faith and are worthy of protection.

“What we had hoped would happen was that the European Court would develop a test of ‘reasonable accommodation’. Had it done so, I think it would have been a lot more reasonable than anything we’re currently experiencing  in our domestic courts. Instead,  the  European Court said there was a ‘wide margin of appreciation’ (meaning discretion) for employers to exercise the balancing act between competing rights. If Relate had accommodated Gary, Islington Council had accommodated Lillian and the Royal Devon and Exeter Hospital accommodated Shirley, the European Court would also have seen no reason to interfere.

“This means that at the Christian Legal Centre we will now go into our domestic courts on our current cases with fantastic legal argument on our side. In the UK these judgments have opened up numerous new legal arguments in our favour. We believe this is real legal success. I want to thank Paul Diamond, Standing Counsel to the Christian Legal Centre, who has been making these arguments for Christian freedoms for over a decade.

“The tide is turning. And we will not give up until justice is done for every one of our clients.

“It is time for Christians to find their voice; their faith. To not be ashamed of Jesus; to make their faith public.”

Find out more about Gary McFarlane
Find out more about Shirley Chaplin
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