Christopher Luff, who has recently completed his LLM at the University of Essex and is currently researching judicial review, has kindly contributed the following guest post.
(Note: In what follows I shall use Eweida to refer to the judgment and Eweida to refer to Nadia Eweida the claimant.)
Many others have written helpful case-notes on Eweida: some concise, others very comprehensive. I would recommend the Oxford Human Rights Hub, the UK Human Rights Blog and, of course, the earlier note from Law and Religion UK. Instead of writing another case-note, I want to look at the method the Court used to decide the cases and the potential future impact of that method.
Simply as a brief reminder, the case involves four claimants:
- Eweida, who was forbidden for a time from wearing a crucifix necklace in line with British Airways’ uniform policy;
- Chaplin, who was likewise forbidden but for reasons of health and safety;
- Ladele, who refused to perform civil partnership ceremonies; and
- McFarlane, who refused to commit to providing psycho-sexual therapy to same-sex couples.
All four claimed that their Article 9 rights had been violated. Two of them additionally claimed that Article 14 had also been breached.
Article 9 ECHR provides that:
“(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
(2) Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.”
Article 14 provides that:
“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Court’s analysis
The judgment is important in a number of ways. First, it clarifies that there is no requirement on the claimant to demonstrate that the manifestation of their faith was a recognised religious duty . Secondly, and more importantly, it brings religious rights within the same analysis as the other non-absolute rights. In doing so, it expressly disavows the argument that religious conscience in the workplace is protected by the catch-all freedom to leave one’s job, which is now relegated to the status of a mere consideration .
These changes seem a justifiable and sensible development within the Convention scheme, which normally holds the Member State responsible for justifying actions that fall within a Convention right. Furthermore the Court has long specified a clear series of tests to be carried out before concluding whether such action is lawfully justified or not.
Although not explained explicitly, the court does seem to have applied this analysis to the cases. Those stages, which are often collectively referred to (wrongly) as the test of proportionality, are:
1. Is Article 9 engaged? In other words, is there a prima facie interference with the freedom to manifest religion?
In all four cases, it was accepted that Article 9 was engaged. The test, broadly speaking, is whether the belief system is sufficiently cogent, serious, cohesive and important  and, further, whether the act in question is intimately linked to the religion or belief with a “sufficiently close and direct nexus” .
2. Is the interference prescribed by law? In other words, is the action that engages Article 9 either explicitly provided for, or permitted, in the law of the land?
If lawful basis is lacking, the analysis stops. The violation is made out.
3. Is there a legitimate aim to the interference? In other words, is there some wider good envisaged in the interference with this individual’s rights?
There are limited grounds upon which an interference can be justified. These are found in the exceptions listed in Article 9(2) – for example, protection of public health, and protection of the rights and freedoms of others. If the interference cannot be placed within one of these categories, the violation will be made out.
4. Is the interference necessary in a democratic society?
While an interference might both be prima facie lawful and pursue a legitimate objective, it will only be justified if it is deemed necessary. The word “necessary” has been defined as stricter than merely “reasonable” but not as inflexible as “indispensable”: Silver & Ors v United Kingdom 5947/72; 6205/73;7052/75;…  ECHR 5 (25 March 1983) at .
The test for necessity has been broken down into a further two stages:
4.1 Is the interference in pursuance of a “pressing social need.” If so that need must be capable of being demonstrated?
A bona fide legitimate aim is not synonymous with a pressing social need, as it might equally describe a ‘nice to have’ as it might describe an urgent and justifiable measure.
4.2 Is the interference no greater than necessary to address the pressing social need?
This final stage may correctly be referred to as the test for proportionality. What it means is this: even if there is a pressing social need, if the measure impinges too far into an individual’s fundamental rights when compared with the benefit gained to the wider community, the interference will not be justified. To that end, only the minimum interference necessary to secure the legitimate aim will be justifiable.
It has been said that “a lack of proportionality may be demonstrated where there is an alternative, less intrusive way of protecting the public interest” and “where there were alternative ways in which social policies might be pursued the state was not entitled to choose a way which violated an individual’s rights”: Harris, O’Boyle & Warbrick, Law of the ECHR, 2nd ed p 359, commenting on Campbell v United Kingdom 13590/88  ECHR 41 (25 March 1992) at  and Marckx v Belgium 6833/74  ECHR 2 (13 June 1979) at .
The “margin of appreciation” which I refer to later on in relation to Ladele and McFarlane operates only at this final, proportionality, stage.
As described, this is a formidable series of tests to overcome. It is a very strict analysis; and in fact a violation will (should!) be found if the interference fails any of the tests along the way. (For an alternative view on the strictness of the proportionality test, see Lady Justice Arden’s speech to the Association of European Law, 12 November 2012.)
Why the different outcomes?
Nevertheless, the Strasbourg judges do not always elucidate their judgments expressly to the formula, and they don’t appear to have done so in Eweida. I think it is useful to try to analyse these cases within that formula to see if it helps us understand why, for example, Eweida was successful, and Chaplin not. After looking at them I will deal with Ladele and McFarlane.
- the NHS Trust had a “legitimate aim” of protecting public health and the health and safety of nurses  & ;
- the restriction addressed the “pressing social need” of preventing injury and infection in the context of a hospital  & ;
- it was a proportionate restriction, probably in its own right, but certainly assisted because the employee was permitted to wear an alternative, visible, cross in the form of a brooch instead of a necklace, which would only have to be removed in certain clinical circumstances  & ;
- the restriction was not discriminatory because people of other faiths had similar restrictions applied – for example, Sikhs told to remove bangles, and Muslim ladies having to wear special closely-fitting hijabs  & .
- British Airways’ uniform policy was declared to be a legitimate aim (although where that is found in Article 9(2) is a bit of a mystery to me) & ;
- no pressing social need seems to have been identified;
- thus there was nothing for the restriction to be balanced against for the purposes of proportionality.
- furthermore, people of other faiths had been permitted to wear items related to their religion while performing the same role; thus there was apparent discrimination .
When analysed even as briefly as this it becomes immediately apparent why Eweida’s case was the stronger. I should mention in passing that some have pointed out that Eweida’s own behaviour was less than exemplary, by not awaiting the outcome of her grievance and by choosing to remain at home instead of availing herself of alternative work with BA that was not public-facing and therefore did not require adherence to the strict uniform policy. However, this is to miss the point of human rights. Once it is accepted that Article 9 is engaged, the ‘worthiness’ of the person is irrelevant, since human rights are not predicated on an individual’s behaviour but on their humanity.
Ladele and McFarlane
These two complaints were expressly decided using the “margin of appreciation” [106 & 109] – as mentioned above, which falls into the final element of the test for lawful interference. In both cases the judges found the views of the claimants to be deeply and genuinely held [103 & 108], although in the case of the dissentients, McFarlane attracted less sympathy due to knowingly taking on a job that would entail his working with homosexual couples .
It was accepted by the Court that both the London Borough of Islington and Relate had legitimate aims in providing services that did not discriminate against their service-users in same-sex relationships [105 & 109]. While not expressly adverted to, one can readily understand that the provision of services in a non-discriminatory manner to a group that has historically been treated poorly qualified as a pressing social need.
Whether the action in each case was proportionate was, however, decided using the margin of appreciation. This is invoked where there is a lack of uniformity of approach across Member States of the Council of Europe, and is a way for the Court to acknowledge that governments and domestic courts are better placed to make policy decisions. In this case that decision was how to balance the competing rights of religious conscience and homosexual equality.
I mention this only to draw attention to the fact that by citing the margin of appreciation, the Strasbourg judges seem to be contemplating the possibility that another member state might draw the boundary between these competing rights elsewhere – perhaps giving pre-eminence to religious rights, or alternatively treating them equally with some sort of ‘conscience clause.’
Ladele had in fact argued that religion should be considered a “suspect category” for Article 14 purposes , thus requiring “particularly weighty reasons” before indirect discrimination could be justified. This was not accepted by the court however, which reiterated that it is discrimination on grounds of sexuality (alongside, for example, race and gender) that requires particularly weighty grounds .
I suspect something of a fudge in this part of the judgment, perhaps the judges postponing the day when they have to rule definitively on the matter, bearing in mind some Member States are more openly religious than others. Discretion was perhaps the better part of valour in a case where such a definitive ruling was not strictly necessary.
As I mentioned above, bringing religious manifestation within the standard approach to Article 8-11 cases does make sense in the Convention scheme, whereby a strict analysis is carried out, the onus is on the body interfering with the right to justify it, and the ability to resign is not seen as a catch-all answer. These can be interpreted as significant “wins” for those bringing the challenges, despite only one of the claimants having been successful on the facts.
Nevertheless I confess to some misgivings about the wider ramifications of these changes. I haven’t yet come to a firm conclusion, (that would be another blog post), but those misgivings are based around the following concerns:
1. It might be seen that following this analysis, religious people have “special pleading” that avails them of special treatment not enjoyed by agnostics and atheists. While non-believers may not fully appreciate that the freedom to change religions is easier to say than to experience, the accusation of special pleading still carries some justifiable sting.
My current thinking on this is not to argue against the developments in this case but rather to consider the possibility of tightening the gateway to engaging Article 9 in the first place. Once the Convention is engaged, then it is quite proper that interferences be strictly construed, as is the expectation where a prima facie human rights violation is concerned.
2. That misgiving is fortified by the potential watering down of the analysis of indirect discrimination by removing the ‘group’ analysis. This is called into question in Eweida by Sir Nicholas Bratza, dissenting at  and the majority at , where it is held that it is no longer necessary for a claimant to show the manifestation in question is mandated by his or her religion. In other words, individual conviction can be sufficient.
Group analysis is an objective tool used by the law to weigh subjective religious convictions, because the court will not involve itself in assessing the bona fides of religious doctrine. This is the analysis that caused so much furore (when misunderstood) in the press in the recent domestic case of Mba v London Borough of Merton (Religion or Belief Discrimination)  UKEAT 0332 12 1312 (13 December 2012): see particularly . While to be recognised as a religious conviction in the first place the belief must be sufficiently “cogent, serious, cohesive and important,” without the group analysis I fear the test for indirect discrimination could collapse because diverse and conflicting views are present in all religions.
3. I’m not certain the decision in Eweida is necessarily reconcilable with earlier Strasbourg case law on religious freedom, at a deeper level than the departures already mentioned above. It should be noted, of course, that Eweida is not “final” yet and won’t become so until the time limit for appealing is exhausted. However, there seems to be some disagreement amongst the Strasbourg judges whether they hold pluralism to be the touchstone of democracy (see Lautsi & Ors v Italy 30814/06  ECHR 2412 (18 March 2011)) or of secularism (Leyla Sahin v Turkey 44774/98  ECHR 299 (29 June 2004)). Eweida seems to me to hold to the former.
It will certainly be very interesting to see what the Grand Chamber makes of Eweida should one of the claimants choose to appeal. It would be a useful opportunity for the Grand Chamber to clarify its approach.
In the meantime, we might anticipate more domestic challenges to establish the limits of the post-Eweida approach. Whether they will fare any better than, say, McFarlane did before Laws LJ remains to be seen.