The Parliamentary Assembly of the Council of Europe at Strasbourg has agreed Resolution 2036 on Tackling intolerance and discrimination in Europe with a special focus on Christians, based on a Report by the Assembly’s Committee on Equality and Non-Discrimination. The Resolution reads as follows:
“1. Intolerance and discrimination on grounds of religion or belief affect minority religious groups in Europe, but also people belonging to majority religious groups. Numerous acts of hostility, violence and vandalism have been recorded in recent years against Christians and their places of worship, but these acts are often overlooked by the national authorities. Expression of faith is sometimes unduly limited by national legislation and policies which do not allow the accommodation of religious beliefs and practices.
2. The reasonable accommodation of religious beliefs and practices constitutes a pragmatic means of ensuring the effective and full enjoyment of freedom of religion. When it is applied in a spirit of tolerance, reasonable accommodation allows all religious groups to live in harmony in the respect and acceptance of their diversity.
3. The Parliamentary Assembly has recalled on several occasions the need to promote the peaceful coexistence of religious communities in the member States, notably in Resolution 1846 (2011) on combating all forms of discrimination based on religion, Recommendation 1962 (2011) on the religious dimension of intercultural dialogue and Resolution 1928 (2013) on safeguarding human rights in relation to religion and belief, and protecting religious communities from violence.
4. Freedom of thought, conscience and religion is protected by Article 9 of the European Convention on Human Rights (ETS No. 5) and considered as one of the foundations of a democratic and pluralist society. Limitations to the exercise of freedom of religion must be restricted to those prescribed by law and necessary in a democratic society.
5. The Assembly is convinced that measures should be taken to ensure the effective enjoyment of the protection of freedom of religion or belief afforded to every individual in Europe.
6. The Assembly therefore calls on the Council of Europe member States to:
6.1. promote a culture of tolerance and “living together” based on the acceptance of religious pluralism and on the contribution of religions to a democratic and pluralist society, but also on the right of individuals not to adhere to any religion;
6.2. promote reasonable accommodation within the principle of indirect discrimination so as to:
6.2.1. ensure that the right of all individuals under their jurisdiction to freedom of religion and belief is respected, without impairing for anyone the other rights also guaranteed by the European Convention on Human Rights;
6.2.2. uphold freedom of conscience in the workplace while ensuring that access to services provided by law is maintained and the right of others to be free from discrimination is protected;
6.2.3. respect the right of parents to provide their children with an education in conformity with their religious or philosophical convictions, while guaranteeing the fundamental right of children to education in a critical and pluralistic manner in accordance with the European Convention on Human Rights, its protocols and the case law of the European Court of Human Rights;
6.2.4. enable Christians to fully participate in public life;
6.3. protect the peaceful exercise of freedom of assembly, in particular through measures to ensure that counter-demonstrations do not affect the right to demonstrate, in line with the guidelines on freedom of assembly, of the European Commission for Democracy through Law (Venice Commission) and the Office for Democratic Institutions and Human Rights of the Organization for Security and Co-operation in Europe (OSCE/ODIHR);
6.4. uphold the fundamental right to freedom of expression by ensuring national legislation does not unduly limit religiously motivated speech;
6.5. publicly condemn the use of and incitement to violence, as well as all forms of discrimination and intolerance on religious grounds;
6.6. combat and prevent cases of violence, discrimination and intolerance, in particular by carrying out effective investigations in order to avoid any sense of impunity among the perpetrators;
6.7. encourage the media to avoid negative stereotyping and communicating prejudices against Christians, in the same way as for any other group;
6.8. ensure the protection of Christian minority communities and allow such communities to be registered as a religious organisation, and to establish and maintain meeting places and places of worship, regardless of the number of believers and without any undue administrative burden;
6.9. guarantee the enjoyment by Christian minority communities of the right to publish and use religious literature.”
Comment
It should be noted in passing that “living together” seems to have infiltrated its way into the discourse, presumably from the judgment in SAS v France [2014] ECHR 695 (on which I commented rather critically at the time and which received what can only be described as mixed reactions from the academic community). It should also be remembered that Resolutions of the Parliamentary Assembly are not binding on the Council of Ministers.
The call to “promote reasonable accommodation within the principle of indirect discrimination” in the workplace is not without problems. Lady Hale DPSC has already called for an exploration of “reasonable accommodation” in her 2014 lecture on Freedom of Religion and Belief to the Law Society of Ireland. Commenting on the complaints in Eweida and Ors v United Kingdom [2013] ECHR 37 she said this:
Most of these complaints were – and are likely to be – of indirect discrimination: not that the employer had treated them badly because they were Christians, but because the employer had applied a rule or practice to them which had adverse effects upon them because they were Christians. So should we be developing, in both human rights and EU law, an explicit requirement upon the providers of employment, goods and services to make reasonable accommodation for the manifestation of religious and other beliefs? And even vice versa?
It’s a reasonable question; and in our recent evidence to the Commission on Religion and Belief in British Public Life a group of us at Cardiff Law School’s Centre for Law & Religion suggested that there was scope for clearer guidance on what “accommodation” should mean in practice:
“In particular, thought needs to be given to whether beliefs which emanate from the settled world view of a major religion may be entitled to more respect and whether a general right to conscientious objection is required. Conflicts seem particularly likely where a person with strong religious or philosophical beliefs is required to affirm someone else’s belief to which he or she has a conscientious objection”.
That said, however, “reasonable accommodation” in a situation of indirect discrimination might only be possible in very limited circumstances. The issue is certainly well worth exploring further; but the final answer, after careful consideration, might well be that in practical terms it would be extremely difficult to operate. As was subsequently pointed out to me, a key problem with “reasonable accommodation” as a legal principle lies in defining what is “reasonable”. To which the short answer is that the courts are already required to make decisions about “reasonableness” in some circumstances – but the longer one is that it is by no means an easy judgment to make.
I very much doubt that if we were to import “reasonable accommodation” into the system it would provide any kind of quick fix for clashing rights: there would still have to be a balancing exercise. But we shall see: the Telegraph reports that the PACE Resolution is to be cited in a forthcoming employment tribunal case involving a London nursery worker, Ms Sarah Mbuyi, who claims that she was dismissed for telling a lesbian colleague about her beliefs on same-sex marriage. She is being supported by the Christian Legal Centre.
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Of course, there is another plain and simple rule of thumb: it is always unreasonable for a company or organisation to have a policy which conflicts with Christian conscience, because the word of God is the ultimate guide to morality. Instead of making exemptions, the company or organisation should remove its immoral policies.
Maybe, if that’s what you believe. But it’s not the current law in any of the three UK jurisdictions.
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