The paradox beneath Strasbourg’s French veil ban decision

16 July 2014 by Matthew Flinn

S.A.S v France (Application no. 43835/11) – read judgment

The Grand Chamber of the European Court of Human Rights has rejected a challenge to a French law which prohibits the wearing of veils in public. The ruling is, of course, of great political and media interest, but it is also significant from a legal perspective. In a lengthy and detailed judgment, the Court ultimately accepts that, as a matter of principle, a government can legitimately interfere with the rights of individuals in pursuit of social and cultural cohesion.

On 11^th April 2011, Law no. 2010-1192 came into force in the French Republic. Subject to certain limited exceptions, the law prohibits anyone from wearing any clothing which conceals their face when in public places, on pain of a 150 euro fine, and/or compulsory citizenship classes. Whilst phrased in general terms, the most obvious effect of the law, and its clear intention, is to ban the niqab (a veil that leaves only the eyes visible) and the burka (a loose garment covering the entire body with a mesh screen over the face).

The human rights challenge

The applicant, a young French national of the Islamic faith, challenged the law under a range of Convention Articles. Specifically, she argued that it infringed her rights Articles 3, 8, 9, 10, and 11, alone and in conjunction with Article 14 (which prohibits discrimination). The challenges under Articles 3 (prohibition on torture) and 11 (freedom of association) were deemed unarguable and were summarily dismissed, but the Court did proceed to consider in detail the challenges brought under Article 8 (protection of the private life), Article 9 (freedom of religion) and Article 10 (freedom of expression). The arguments advanced in respect of all three Articles were similar, and so the Court focused on its analysis in respect of Article 9. That made sense because most acute impact of the law is on Muslim women, who choose to wear the niqab or the burka as an expression of their faith.

The Court said that it was clear that the ban interfered with the applicant’s rights. She was faced with the choice of either refraining from wearing the burka or niqab in accordance with the dictates of her conscience and beliefs, or exposing herself to the risk of prosecution. However, the important thing about Articles 8, 9 and 10 is that they are qualified rights. That means that, under Convention law,  interference with a right does not amount to an unlawful infringement, provided the interference constitutes a proportionate interference in pursuit of a legitimate aim.

In most cases, the question of whether or not an interference with a right is in pursuit of a “legitimate aim” is dealt with by the Court only in passing. The qualified Convention Articles each set out a list of broad aims, and it is usually easy to satisfy the Court that at least one of the objectives is served (or intended to be served) by the law to some extent.

Not so in this case. A much more detailed examination of this question was required.

In respect of Article 9, the following legitimate aims are set out in the Convention:

• The need to protect public safety.
• The need  to protect public order.
• The need to protect public health or morals.
• The need to protect the rights and freedoms of others.

The first contention of the French Government was that the law aimed to protect public safety. It argued that in certain situations concealing the face could endanger safety, or facilitate identity fraud. Whilst the court accepted that argument, it went on to hold that, if that was so, then the interference was not proportionate, since the ban was general in nature, and yet there was no evidence of a general threat posed by the wearing of clothing such as veils. Moreover, insofar as specific concerns arose e.g. at security checkpoints, they could be allayed by simply requiring that the veil be temporarily removed.

The other aim cited by the French Government was the need to ensure “respect for the minimum set of values of an open and democratic society”. That was a striking argument since, as the Court recognized, such an aim is not mentioned in any of the qualification provisions in the Convention. The French Government submitted, however, that this objective formed a part of the broader aim of “protecting the rights and freedoms of others”, which is mentioned.

The Government identified three values that the ban was intended to reflect: gender equality, human dignity and “respect for the minimum requirements of life in society”. The court rejected the Government’s arguments in relation to the first two values (equality and human dignity), but in relation to the third, it accepted that concealing the face could undermine the value of “living together” in society. At paragraph 122 of its judgment it said:

The Court takes into account the respondent State’s point that the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally 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.

Proportionality

Having determined that the law did serve a legitimate aim, the Court then had to consider whether or not it was proportionate. They key finding in this respect was that in matters of State and religion, Governments tend to have a broad margin of appreciation, which means the Court is less likely to interfere with the actions of a democratically elected government. In doing so, it had to distinguish cases such as Eweida and others v United Kingdom and Ahmet Arslan and Others v Turkey, in which the Court found violations of Article 9 where other less conspicuous items of religious clothing had been banned. The upshot is that Law no. 2010-1192 was upheld.

It is the court’s approach to the issue of the aim of the law, as set out in paragraph 122 (quoted above), which forms the heart of this judgment. If you unpack it, it could be read as having some significant implications.

First, the idea of the right “to live in a space of socialization which makes living together easier”. That is not a right mentioned anywhere in the Convention. Normally, when cases involve a balancing of rights, it is a matter of constraining one Convention right in order to preserve another. For example, my Article 10 right to say whatever I want about you is limited in order to protect your Article 8 right to respect for your private life. The approach of the Court in this case arguably represents a significant extension to the meaning of the legitimate aim of protecting the “rights and freedoms of others”.

Secondly, the idea that such a right may be protected where someone’s behaviour is at odds with those values which form part of an “established consensus”. What does this mean in terms of the protection of minorities, whose values and attitudes may be different in any number of ways, and at times may upset or irk the majority? Can my rights to express myself in a peaceful way be curtailed because I make you uncomfortable or cause tension? Read in that light, it is not unimaginable that this judgment could be relied upon by governments in the future as justifying legislation which is downright discriminatory.

I emphasise that these questions arise based upon a broad interpretation of the Court’s reasoning. Subsequent case law may show that the judgment in this case is tied very much to its specific facts, and in particular the fundamental role of the face in facilitating interaction in society. Interference with something less fundamental would not be treated in the same way by the Court, which is why, for example, the wearing of other items of religious clothing could not be banned, even if such clothing offended the majority (see again Ahmet Arslan and Others v Turkey).

Essentially, this was a case about the meaning of pluralism, with the court accepting that in some cases, the rights of individuals can be made subject to the goal of maintaining and improving societal cohesion. There is an inevitable paradox here, as recognised by the Court itself:

…as the applicant pointed out, by prohibiting everyone from wearing clothing designed to conceal the face in public places, the respondent State has to a certain extent restricted the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public. However, for their part, the Government indicated that it was a question of responding to a practice that the State deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”. From that perspective, the respondent State is seeking to protect a principle of interaction between individuals, which in its view is essential for the expression not only of pluralism, but also of tolerance and broadmindedness without which there is no democratic society. It can thus be said that the question whether or not it should be permitted to wear the full-face veil in public places constitutes a choice of society.

In a time when the media frequently latches on to controversial sound-bites such as “multiculturalism has failed”, the Court’s decision may be seen by some as a welcome and even necessary development. However, it is important that it is read with eyes that are also open to its potentially more troubling implications.

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