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Iter Lamentabilis

17th January 2013

  • ResPublica

ResPublica Trustee Professor Simon Lee's writes for The Universe

On Tuesday, the European Court of Human Rights ruled in favour of one Christian complaining about UK law on freedom of religion and against three others. Or, to be precise, a Chamber of the Court gave that ruling. It is still possible for appeals to be made to the full Court.

While we might take some time to absorb the long and complex judgment from Strasbourg, two government ministers spoke out immediately and robustly. Eric Pickles joined the applicants on the airwaves and faced some challenging questions. For the government welcomed the decision, even though it was uncertain in the judgment of others what the significance of the combined cases might be, even though the government lawyers in the case had opposed the applicants and even though the Conservative party is meant to be hostile to the Strasbourg Court.

David Cameron was even more emphatic, prompt and succinct, albeit mystifyingly so to many. He tweeted his reaction: ‘Delighted that principle of wearing religious symbols at work has been upheld – ppl shouldn’t suffer discrimination due to religious beliefs.’

Sceptics noted that both the Prime Minister and the Secretary of State had previously promised legislation would be introduced if needed. The subtle mix of arguments and conclusions in Strasbourg might be enough, therefore, to allow them to argue that there is now need to implement that promise as the principle has been upheld.

Yet the principle was always there. The issues are more to do with what it means, how it is balanced with other fundamental principles which might seem to be in conflict and how all the relevant principles are applied to the facts of particular cases.

One of the reasons why there is so much interest in these cases, and government reaction to them, in the overlapping circles of those interested in religion, human rights, law, politics and the media, is their perceived impact on the debate about marriage law reform.

Four immediate points have a wider relevance to the public square.

In my first tutorial as a law student, I learned to ask of every case four questions. What are the facts? What is the issue? What was the decision? What were the reasons for the decision? This saga has shown firstly how we should be wary of pronouncing on the rights and wrongs of cases unless and until we are confident of the facts, of what happened. The differences in the four cases have become clearer in the reporting of this latest Strasbourg ruling but the disappointed applicants are still arguing in a series of radio interviews that the facts of their particular cases have been misunderstood by their employers, tribunals, courts and media.

Second, the main judgment referred several times to third party interventions, historically known here and in the USA by the Latin term for ‘friend of the court’, an amicus curiae. ResPublica and other interested observers should consider making their own contributions in such cases.

Third, because these were cases about individuals the lawyers could ignore the provision to safeguard religious groups collectively in the Human Rights Act 1998, conceded by Jack Straw as Home Secretary to appease Cardinal Hume, but when there is so much talk about balancing rights this should be brought into play in wider arguments. s13 states that, ‘If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’ That is not even mentioned by the government as any part of its quadruple lock in the marriage law debate. Either it has meaning, in which case it is relevant, or the Church cannot trust politicians’ assurances enshrined in fundamental legislation, in which case the other locks are not convincing.

Fourth, contrary to much Westminster rhetoric, not all European judges think alike. One of the two dissents is especially interesting. It is a joint dissent in respect of Ms Ladele, the registrar who lost her job with Islington council because she was not in conscience able to officiate at same-sex unions. One of these judges is from Montenegro, the other from Malta.

Judges VUČINIĆ and DE GAETANO were ‘unable to share the majority’s opinion that there has been no violation of the Convention in respect of the third applicant (Ms Ladele). The third applicant’s case is not so much one of freedom of religious belief as one of freedom of conscience…The pre-eminence (and the ontological roots) of conscience is underscored by the words of a nineteenth century writer who noted that…Conscience may come into collision with the word of a Pope, and is to be followed in spite of that word.’ Their footnote at this point refers to Cardinal John Henry Newman: ‘…Certainly, if I am obliged to bring religion into after-dinner toasts, (which indeed does not seem quite the thing) I shall drink — to the Pope, if you please, — still, to Conscience first, and to the Pope afterwards.’

As for the applicant, instead of having her conscience respected, however, these dissenting judges say that ‘a combination of back-stabbing by her colleagues and the blinkered political correctness of the Borough of Islington (which clearly favoured “gay rights” over fundamental human rights) eventually led to her dismissal.’

Then the dissenting judges describe the proceedings in the legal system here as an ‘iter lamentabilis right up to the Court of Appeal’.

Their conclusion is that, ‘Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal’.

Some European judges, then, can be robust themselves and will be once the churches and government have squared up in the debate on marriage law.

This article was originally published in The Catholic Universe.

The Catholic Universe Article

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