Religious versus other freedoms: the future of Article 9?

10 May 2010 by

McFarlane v Relate Avon Ltd [2010] EWCA Civ B1 (29 April 2010) – Read judgment or our previous post

Case comment

Lord Carey of Clifton, responding to Lord Justice Laws’ observations in MacFarlane, has called this latest dust-up about religion in the courts a “deeply unedifying clash of rights“. It is indeed a clash of rights, but unedifying it is not. It is precisely when these rights collide that some real, hard thinking is generated, not only about the precise content of these rights, but their historical purpose and their proper function in modern society.

It may be that when the architects of the Convention drafted Article 9, guaranteeing freedom of thought, conscience and religion, they did not foresee that its future role would not be so much the protection of oppressed believers against Soviet-style secularisation but instead a thorn in the flesh of public authority employers seeking enforce their legitimate objectives against non-compliant religious employees.

In his witness statement, Lord Carey referred to the decisions of the Court of Appeal concerning the wearing of crosses and declared that the type of reasoning in that adjudication was “dangerous to the social order”, representing “clear animus to Christian beliefs”.

Responding to that statement, Laws LJ made a number of (now well publicised) observations, which, though vigorously stated, are hardly controversial, upholding the need for a principled approach in the application of law. As we have commented before on this site, this is one more step in the process of de-privileging of religious beliefs in the hierarchy of interests under the Convention for which Kokkinakis v Greece (1994) 17 EHRR 397 remains an important and serviceable authority.

But, significantly, Laws LJ also said this:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.

This reflects something of a sea change in the judicial approach to the whole notion of “religious beliefs”. It was not very long ago that courts were enjoined to base their determination on whether a certain position or tenet was a matter of spiritual belief (so as to attract the protection of Article 9) by the degree of sincerity with which it was held: see, for example, R(on the application of Sarika Watkins-Singh) v Aberdare Girls High School Governers (Defendant) and Rhondda Cynon Taf Unitory Authority and our comment on it.

Now it seems that claims to a supernatural backing for a course of behaviour will not be privileged by the courts, irrespective of the fervour with which the claimant cleaves to that belief. The focus is instead on the merits of the particular position adopted.

At what point will judges in a largely secular society go on taking these “merits” for granted? Or, to put the question another way, in a multicultural country where a kaleidoscopic range of beliefs and practices are accepted, for the sake of convenience and goodwill, as religions, will the meritorious content of each and every one of these be beyond argument?

Of course it is not possible to undertake a root and branch review of the European Convention, but we can at least ask what role, if any, is played by the specific protection for spiritual beliefs in modern life. In short, it is becoming increasingly clear that the right to respect for religious beliefs no longer responds to any pressing social conditions, in contemporary Europe at any rate. It may be that for all practical purposes this aspect of Article 9 will cease to function since public funding for Article 9-based arguments will tend to be withheld on grounds of inevitable failure in court.

Our habit of framing everything in terms of rights inevitably leads to confusion and “unedifying” collisions such as these, but if the outcome is to remove Article 9 as an obstacle to progressive goals and purposes, such collisions are only to be welcomed.

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