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The Court of Justice of the European Union. Image: Flickr
The Court of Justice of the European Union (CJEU) sparked controversy with its recent judgment passed down in IX v Wabe eV and MH Müller Handels GmbH v MJ. This case required the CJEU to again consider the right to freedom of religion. It ruled that employers can ban workers from observing religious symbols, including headscarves, to maintain a neutral image in front of its customers.
Case Background
This ruling was brought by two Muslim women in Germany who were suspended from their jobs because of wearing a headscarf. IX and MJ, were employed in companies governed by German law as a special needs caregiver and a sales assistant respectively. They both wore the Islamic headscarf at their workplaces. The employers held the view that wearing a headscarf for religious purposes did not correspond to the policy of political, philosophical, and religious neutrality pursued with regard to parents, children, and third parties, and asked the women to remove their headscarf and suspended them from their duties on their refusal to do so. MJ’s employer, MH Müller Handels GmbH, particularly instructed her to “attend her workplace without conspicuous, large-sized signs of any political, philosophical or religious beliefs.”
IX and MJ brought actions before the Arbeitsgericht Hamburg (Hamburg Labour Court, Germany) and the Bundesarbeitsgericht (Federal Labour Court, Germany), respectively. The courts referred the questions to the CJEU concerning the interpretation of Directive 2000/78. This directive establishes a general framework for equal treatment in employment and occupation.
In this claim for judicial review, the issue was whether it was lawful for the claimant independent fostering agency (Cornerstone) only to accept heterosexual evangelical Christians as potential carers under the Equality Act 2010 (EA 2010) and the European Convention on Human Rights (the Convention).
Ofsted wrote a draft report in which they considered this policy to be unlawful when reviewed in the context of the EA 2010 and the Human Rights Act 1998 (HRA 1998) and in a report issued in draft on 12 June 2019 Ofsted assessed the effectiveness of Cornerstone’s leaders and managers as ‘Inadequate’.
The High Court dismissed Cornerstone’s claim, including holding that whilst its policy was not unlawfully discriminatory on the grounds of religious belief, it was unlawfully discriminatory on the grounds of sexual orientation.
The Court of Appeal dismissed Cornerstone’s appeal.
Background law and facts
Cornerstone are a small Independent Fostering Agency (IFA) founded in 1999 based in the North East of England, which at the time of Ofsted’s inspection in 2019 had 14 approved fostering households and cared for 18 children. They claim to provide high quality adoption and fostering services according to Christian principles for children who are hard to place.
The wording of the policy, which potential carers were required to sign up to, under scrutiny appears at paragraph 10 of their Code of Practice under which
There is an expectation on all Cornerstone carers to: […] Set a high standard in personal morality which recognises that God’s gift of sexual intercourse is to be enjoyed exclusively within Christian marriage; abstain from all sexual sins including immodesty, the viewing of pornography, fornication adultery, cohabitation, homosexual behaviour and wilful violation of your birth sex. [21]
Cornerstone argued that its policy in its entirety was essential to the continuation of its work, both because of the funding it receives and because of the shared faith and values of its carers which led to a community of fellowship and worship.
The Charity Commission Review in 2010
Notably the Charity Commission had also reviewed Cornerstone’s work in 2010 after the judgment in Catholic Care ((Diocese of Leeds) v Charity Commission for England and Wales [2010] EWHC 520 (Ch)) noting that the implications from that judgment were that an organisation that discriminates in a way that is not justified is not likely to be established for the public benefit and as such will not be a charity.
Cornerstone’s response to the Charity Commission was, amongst other things, that it did not discriminate on the grounds of sexual orientation but sexual behaviour. The Charity Commission accepted this but without reason. The Charity Commission also accepted that Cornerstone’s provision of services fell within paragraph 2 of Schedule 23 to the EA 2010 which permits the restriction of services because of the purpose of the organisation and/or to avoid causing offence on the grounds of religion or belief.
The Court of Appeal held that the distinction between sexual behaviour and sexual orientation was a nullity because sexual behaviour was a manifestation of sexual orientation. Additionally, the Court found that, as per the judgment in the High Court, Parliament had allowed discrimination on religious grounds except in respect of acts done on behalf of a public authority pursuant to contract which are discriminatory on the grounds of sexual orientation.
On 12 October 2020, the Prime Minister made a statement in Parliament and addressed the nation to announce a new three tier lockdown system would be introduced across the country. The Secretary of State for Health introduced three statutory instruments before Parliament which came into force two days later.
In oversimplified terms, the restrictions in place in each tier are as follows:
A clinic in Newcastle upon Tyne has been granted the UK’s first licence to carry out a trial of “three person IVF” (Mitochondrial Replacement Therapy, or MRT). The fertility technique is intended to be used by couples who want to prevent genetic diseases being passed on to their children, due to faulty mitochondrial DNA. The process uses genetic material from the mother, father and a female donor, and replaces faulty genetic material in the mother’s DNA with the female donor’s genetic material.
There have already been a small number of three parent IVF pregnancies elsewhere in the world, resulting in reportedly healthy babies.
However the technique is not without its controversies and critics. Continue reading →
The Christian Institute and others (Appellants) v The Lord Advocate (Respondent) (Scotland) [2016] UKSC 51 – read judgment here
The Supreme Court has today unanimously struck down the Scottish Parliaments’s Named Persons scheme as insufficiently precise for the purposes of Article 8, overturning two previous decisions at the Court of Session (see our previous coverage here).
Wye Valley NHS Trust v B (Rev 1) [2015] EWCOP 60 (28 September 2015) – read judgment
The Court of Protection has recently ruled that a mentally incapacitated adult could refuse a life saving amputation. This is an important judgement that respects an individual’s right to autonomy despite overwhelming medical evidence that it might be in his best interests to override his wishes. The judge declined to define the 73 year old man at the centre of this case by reference to his mental illness, but rather recognised his core quality is his “fierce independence” which, he accepted, was what Mr B saw as under attack. Continue reading →
Parrillo v Italy (application no. 46470/11) Grand Chamber of the European Court of Human Rights, [2015] ECHR 755 (27 August 2015) – read judgment
The Grand Chamber of the Strasbourg Court has ruled that the Italian ban on the donation of embryos obtained by IVF procedures to scientific research was within Italy’s margin of appreciation and therefore not in breach of the applicant’s right of private life and autonomy, even though she was willing to give the embryos to scientific research, since she no longer wanted to proceed with pregnancy after her partner was killed covering the war in Iraq. By donating these cryopreserved embryos to research she would, she argued, make an important contribution to research into medical therapies and cures.
A strong dissent to the majority judgment is worth pointing up at the outset. The Hungarian judge, Andras Sajó, found Italy’s general ban quite out of order. Not only did it disregard the applicant’s right to self-determination with respect to an important private decision, it did so in an absolute and unforeseeable manner.
The law contains no transitional rules which would have enabled the proper authority to take into consideration the specific situation of the applicant, whose embryos obtained from the IVF treatment were placed in cryopreservation in 2002 and whose husband passed away in 2003, three months before the law entered into force.
Geller and another, R (on the application of) v The Secretary of State for the Home Department [2015] EWCA Civ – read judgment
This short case involves the old dilemma of public order law: whether it is right to shut down speech when the speaker himself does not intend to incite violence, but whose presence it is said may lead third parties to commit violence. Indeed the facts of this particular case go further than that , because the applicants had no plans to make any public address during their proposed visit to Britain. It was their presence alone which was feared would inflame “community tensions”.
The applicants were two well-known US writers whose critical views of Islam led to them being prevented from entering the country in May 2013, to speak at a rally in the aftermath of the terrorist murder of Drummer Lee Rigby. An exclusion order was issued against them on grounds of public order, of which they sought judicial review. This was their appeal against the Immigration Tribunal’s refusal to allow them to proceed with the judicial review claim. Continue reading →
Most law undergraduates are familiar with Jeremy Bentham’s dismissal of natural rights as “nonsense on stilts”. This is a slight misrepresentation of what he said, which was that “Natural rights is simple nonsense: natural and imprescriptible rights, rhetorical nonsense — nonsense upon stilts“. But let’s take the stilts away and consider rights in their ordinary sense. They furnish not only arguments before courts, but reasons for going to war and toppling whole regimes. As Israeli historian Yuval Noah Harari points out in his recent book:
No one was lying when, in 2011, the UN demanded that the Libyan government respect the human rights of its citizens, even though the UN, Libya, and human rights are all figments of our fertile imaginations.
So, might the author have added, are “citizens”, since in a reality without cities and states, it is a non-sequitur to talk of citizens. Continue reading →
B and G (Children) (No.2) [2015] EWFC 3 – read judgment
Contemplating the details of different forms of female genital mutilation is not for the faint hearted. But that is what the courts and the relevant experts have to do, not only to protected alleged victims but to defend the interests of those suspected of perpetuating the procedure, whether it is a question of criminal liability under the FGM Act 2003, or determining that a threshold of harm has been passed so as to initiate care proceedings if the victim is a child.
This case concerned the latter; although in the end the court was not satisfied that the evidence was sufficient to satisfy the “significant harm” requirement under the Children Act 1989, Sir James Munby P considered the case sufficiently important to explore the inclusion of FGM, and, more controversially, male circumcision, in the array of cultural and religious rituals that can trigger the state’s intervention in family life.
These were “deep waters” which the judge was “hesitant to enter”, yet, enter them he did, all the better for the clarification of this difficult issue in care proceedings. Continue reading →
Greater Glasgow Health Board v. Doogan and Wood [2014] UKSC 68 – read judgment here.
The Supreme Court recently handed down its judgment in an interesting and potentially controversial case concerning the interpretation of the conscientious objection clause in the Abortion Act 1967. Overturning the Inner House of the Court of Session’s ruling, the Court held that two Catholic midwives could be required by their employer to delegate to, supervise and support other staff who were involved in carrying out abortion procedures, as part of their roles as Labour Ward Co-ordinators at the Southern General Hospital in Glasgow.
We set out the background to the case and explained the earlier rulings and their ramifications on this blog here and here. The key question the Supreme Court had to grapple with the meaning of the words “to participate in any treatment authorised by this Act to which he has a conscientious objection” in section 4 of the 1967 Act.
R (o.t.a WATCH TOWER BIBLE & TRACT SOCIETY OF BRITAIN) v CHARITY COMMISSION, 12 December 2014, Dove J, no transcript yet available, summary on Lawtel (£)
Judicial review is an excellent and flexible remedy, filling the gaps when statutory and other appeals do not provide a remedy for unlawful administrative acts or omissions.
But there is a flip side, well exemplified by this extempore decision refusing permission for a judicial review – save in exceptional circumstances, you can only seek judicial review when there is no other available remedy.
In this case, Dove J decided that the Court had no jurisdiction to seek judicial review of the Charity Commission’s decision to launch an inquiry and make a production order concerning the Jehovah’s Witnesses charity because the Charities Act 2011 provided for appropriate statutory remedies that the charity should pursue first.
The summary gives only the shortest account of the underlying facts, but it appears as if there are two particular congregations of concern being investigated by the Charity Commission.
Khaira v. Shergill [2014] UKSC 33, 11 June 2014 read judgment
Adam Wagner assisted two of the respondents in this case on behalf of Bindmans, solicitors, but was not involved in the writing of this post.
The Supreme Court has just reversed a decision of the Court of Appeal (see my previous post here) that a dispute about the trust deeds of two Sikh religious charities was non-justiciable and so could not and should not be decided by the Courts. By contrast, the SC said that two initial issues concerning the meaning of trust deeds were justiciable, and, because of this, further issues which did raise religious issues had to be determined by the courts.
The wider interest of the case is its tackling of this tricky concept of non-justiciability.
Mba v London Borough Of Merton [2013] EWCA Civ 1562 – Read judgment
The Court of Appeal has dismissed the appeal of a Christian care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.
The Court unanimously found that although both the EAT and the Employment Tribunal (ET) had erred in law, the ET’s decision was ‘plainly and unarguably right’ [24], and applying the principle in Dobie v Burns International Security (UK) Limited [1984] ICR 812, the errors did not make any difference to the outcome.
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Mba v London Borough Of Merton [2013] EWCA Civ 1562 – 
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