EHRC observations in Strasbourg “religitigation” cases

by Carl Gardner on September 28, 2011

A few weeks ago Adam Wagner at the UK Human Rights Blog told us the ECHR had changed the stance it took in July on a series of religious discrimination claims currently being pursued in the European Court of Human Rights in Strasbourg. Those claims include the case of Nadia Eweida, who wanted by BA to allow her to wear a crucifix over her uniform when facing the public and Lilian Ladele, the registrar who wanted to be excused from civil partnership ceremonies.

Well, since I’ve been away in the Arctic, the EHRC has published the written submissions it’s making in all four cases.

EHRC submission to ECtHR Eweida & Chaplin, Ladele & McFarlane Sep 2011

The headline is that, since it’s not now going to argue in favour of any concept of “reasonable accommodation” for religious believers, the EHRC supports the approach of the courts in Ladele and McFarlane (the case of the relationship counsellor sacked for refusing to help same-sex couples). In the remaining cases, Eweida and Chaplin (about a nurse who was told to remove a Christian necklace), the EHRC is arguing essentially a technical point that the courts should make it easier for claimants like these to establish that they’ve been discriminated against, so that staff uniform policies must be objectively justified by employers: it doesn’t argue that uniform policies are necessarily in breach of the right to freedom of religion.

A welcome retreat, this, and a setback for the religitigation lobby.


{ 1 comment… read it below or add one }

1 James Medhurst September 29, 2011 at 14:43

I am a bit wary of U-turn / retreat metaphors in situations like this. What happened is that the EHRC consulted on a range of options and chose the right one. There are so many sham consultations in public life that I would like a celebrate a consultation which has proved itself to be genuine by bringing about a change of position. It is a strength rather than a weakness to be open to alternatives.

By the way, I do not think that the earlier proposal for reasonable accomodation would necessarily have compelled the EHRC to support the Ladele / McFarlane position. Indeed, I find it wholly unreasonable to allow a public servant to discriminate. This issue will surely arise very soon in the United States, where reasonable accomodation is a requirement. No outcome should be presumed.

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