Accommodating Religious Beliefs: Harm,Clothing or Symbols,and Refusals to Serve Others

Is there a middle path between the existing case law of the European Court of Human Rights, which rarely requires accommodation of a religious individual's beliefs, and a ‘general right to conscientious objection’, which would exempt religious individuals from all anti‐discrimination and other rules interfering with manifestations of their beliefs? The author argues that failure to accommodate is better analysed as prima facie indirect discrimination, to highlight the exclusionary effects of non‐accommodation on religious minorities, and that the presence or absence of direct or indirect harm to others (or cost, disruption or inconvenience to the accommodating party) could guide case‐by‐case assessments of whether the prima facie indirect discrimination is justified. The author then applies a harm analysis to the examples of religious clothing or symbols and religiously motivated refusals to serve others, recently considered by the European Court of Human Rights in Eweida and Others v United Kingdom.     

Sexual Orientation Discrimination after Grant v South-West Trains

In Grant v South-West Trains [1998] ECR I-621, the European Court of Justice implied that, as a general matter, discrimination against an employee on the ground of sexual orientation did not violate Article 141 EC. This article argues that Grant rests on shaky foundations, in that it is conceptually inconsistent with the Court's earlier decision in P v S and Cornwall County Council [1996] ECR I-2143. Furthermore, the scope of Grant has since been qualified by decisions of the European Court of Human Rights – decisions which may well have undermined the status of the case more broadly. However these difficulties are ultimately resolved, the Court of Justice's treatment of sexual orientation discrimination exposes flaws in its approach as a self-proclaimed constitutional court.     

Ideological Neutrality in the Workplace

This note assesses the decisions of the Court of Justice of the European Union in Achbita v G4S Secure Solutions NV and Bougnaoui v Micropole SA, the first cases dealing with religious discrimination under the Equal Treatment Directive 2000/43. Both cases concerned Muslim women wishing to express their religious beliefs by wearing an Islamic headscarf while working in a private undertaking. The Court held that the employees’ dismissal could not be justified by reference to clients’ prejudices against the headscarf. However, dismissal could be justified if pursued on the basis of a corporate policy of ideological neutrality which prohibited all visible religious, political and philosophical symbols. This note criticises the latter part of the Court's decision for, inter alia, placing too much weight on an employer's freedom to run its business in spite of the grave effects this has on employees’ fundamental right to manifest their beliefs at work.     

Personal Religious Beliefs in the Workplace: How Not to Define Indirect Discrimination

In cases concerning indirect religious discrimination the claimant must demonstrate that an otherwise neutral measure has caused her to suffer a particular disadvantage because of her religion. In Eweida v British Airways the Court of Appeal held that personal religious beliefs which are not part of official religious dogma cannot be relied upon as the basis for a claim of indirect discrimination. I discuss, first, the reasoning of the Court of Appeal in Eweida; then I examine the way personal religious beliefs have been treated in other cases in Britain and in the United States; finally, I place the issue in a wider human rights framework.     

The human right to marry: a refugee’s perspective

In the European Court of Human Rights cases of Muñoz Díaz v Spain in 2009 (Muñoz Díaz v Spain [2009], Application No. 49151/07) and Serife Yigit v Turkey in 2010 (Serife Yegit [2010], Application No. 3976/05), involving unregistered/informal ‘marriages’ of a Roma couple and a Muslim couple, respectively, the Grand Chamber took the position that civil marriages are available to all people in the state without distinction and therefore no breach of Article 12’s right to marry (nor Article 14’s prohibition of discrimination) had occurred when the respective states failed to recognise the informal marriages of the applicants. This article considers these two cases, and asks whether the court’s position is challenged by migrants/refugees, whose access to formal marriages maybe impeded due to a lack of identity and status documentation.     

Relatively Absolute? The Undermining of Article 3 ECHR in Ahmad v UK

The recent decision of the European Court of Human Rights in Ahmad v UK dangerously undermines the well‐established case law of the Court on counter‐terrorism and non‐refoulement towards torture, inhuman and degrading treatment or punishment. Although ostensibly rejecting the ‘relativist’ approach to Article 3 ECHR adopted by the House of Lords in Wellington v Secretary of State for the Home Department, the Court appeared to accept that what is a breach of Article 3 in a domestic context may not be a breach in an extradition or expulsion context. This statement is difficult to reconcile with the jurisprudence constante of the Court in the last fifteen years, according to which Article 3 ECHR is an absolute right in all its applications, including non‐refoulement, regardless of who the potential victim of torture, inhuman or degrading treatment is, what she may have done, or where the treatment at issue would occur.     

Case Comment: The Legality of ‘Kettling’ after Austin

This case comment considers the European Court of Human Rights decision of Austin v United Kingdom (2012) 55 EHRR 14. Austin claimed, unsuccessfully, that police kettling at a public protest in London amounted to a violation of her right to liberty under Article 5 of the European Convention of Human Rights. This case comment suggests that the court took an unexpected and unorthodox approach to the issue of ‘deprivation’ within Article 5. This decision may come to undermine the protections afforded by Article 5 and extend the current exceptions to Article 5 to an indefinite range of situations.     

Religion in the Workplace: Eweida and Others v United Kingdom

The European Court of Human Rights judgment in Eweida and Others v United Kingdom dealt with the increasingly controversial questions of religious symbols at work and the clash between free conscience and anti‐discrimination norms. In a change of approach, it held that the right to resign could no longer be seen as adequate protection for religious freedom and that workplace norms that restrict religious liberty must satisfy a proportionality test. However, it accorded a wide margin of appreciation to States in reconciling freedom of conscience and freedom from discrimination, ruling that the importance of non‐discrimination could justify a failure to exempt a religious individual from complying with a policy forbidding discrimination on grounds of sexual orientation.     

Social and social scientific perspectives in judicial interpretations of the constitution

It has been traditional to demarcateMuller v. Oregon as the first Supreme Court case to benefit from a social science perspective andBrown v. Board of Education of Topeka as the first case to rely on social science evidence. This article explores the hypothesis that social perspectives have long been a part of the Court's decisionmaking when it has confronted difficult social issues. Two 19th-century race opinions,Dred Scott v. Sandford andPlessy v. Ferguson, are used to support this position. The authors suggest that the social perspectives contained in the other articles in this special issue reflect a long-standing association between social science information and law.We appreciate the suggestions made by Michael J. Saks on an earlier draft of this article.     

Shifting Conceptions of Sexual Discrimination at the Court of Justice: from P v S to Grant v SWT

Decisions of the Court of Justice have challenged traditional notions of sexual discrimination. In P v S and Cornwall County Council, the Court held that discrimination against transsexuals was contrary to the 1976 Equal Treatment Directive. However, in Grant v South‐West Trains, the Court rejected arguments that Article 119 on equal pay prohibited discrimination on the basis of sexual orientation. This article contrasts the two decisions, and in particular focuses on the inconsistencies in the Court's definition of what constitutes sexual discrimination. The article further considers the underlying factors which may have influenced the Court's judgment, including the moral dimension and the political context of the two decisions. Finally, there is a discussion of the merits of equality litigation strategies, in particular at the Court of Justice.     

Redfearn v UK: Political Association and Dismissal

In Redfearn v UK the European Court of Human Rights examined the question whether dismissal for membership of a political party is compatible with freedom of association under Article 11 of the European Convention on Human Rights. The Court endorsed a strong commitment to multi‐party democracy and protection of employees against the domination of the employers. This note discusses the judgment and its implications for UK law, looking at three key issues: first, whether the law of unfair dismissal provides effective protection against action that poses a threat to the enjoyment of Convention rights; second, the grounds under which an employer may justify the lawfulness of a dismissal that interferes with a Convention right; third, the available remedies against the employer when there is a breach of a Convention right.     

Content and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts-content and viewpoint discrimination. This article systematically explores the malleability of the Court's speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court's weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.     

Adverse Possession and Article 1 of the European Convention

In the post-human rights era the question has arisen on several occasions as to whether the automatic and arbitrary termination of the registered owner’s title through the common law and statutory principles governing adverse possession of land is contrary to the Article 1, Protocol 1 of the European Convention. The matter fell to be decided in J.A. Pye (Oxford) Ltd v United Kingdom ([2005] 3 EGLR 1) where the European Court of Human Rights held that the automatic termination of a registered owners title after 12 years possession was indeed a violation of Article 1, Protocol 1. More recently, the decision of the European Court has been overturned by the Grand Chamber of the European Court of Human Rights where the Grand Chamber has held that a squatters’ right to another persons land are not disproportionate (J. A. Pye (Oxford) Ltd and Another v United Kingdom, The Times, October 1st 2007). This short article examines the decision of the Grand Chamber.

Citizen Led Policing in the Digital Realm: Paedophile Hunters and Article 8 in the case of Sutherland v Her Majesty's Advocate

In Sutherland v Her Majesty's Advocate, the Supreme Court unanimously dismissed an appeal which argued that the use of communications obtained by a paedophile hunter group as evidence in criminal prosecution was a violation of Article 8 of the European Convention on Human Rights. The case raises fundamental questions of the scope of the right to private life as regards to the content of communications and the role played by private actors in the criminal justice process. This note argues that by limiting the protection of Article 8 to private communications which satisfy a contents-based test, the Court has bypassed the Article 8(2) balancing test to the detriment of the due process rights of the accused. The note concludes that the decision opens up the prospect of the state circumventing the accused's Article 8 privacy rights by lending tacit approval to the proactive investigations of these private ‘paedophile hunter’ groups.     

Out of Many,One? Strasbourg's Ibrahim Decision on Article 6

This case comment considers the European Court of Human Rights decision of Ibrahim v United Kingdom on 13 September 2016. Relying on Salduz v Turkey, the applicants claimed, largely unsuccessfully, that denial of access to a lawyer during police questioning, and subsequent admission into evidence of statements made in the course of that questioning, violated fair trial rights protected by Article 6 of the European Convention on Human Rights. The comment suggests that the decision's unusually emphatic statements about Article 6's ‘internal structure’ have consequences for assessing violations in future applications. Further, the decision creates greater room for public interest balancing in Article 6 cases. The decision may thus undermine the Article 6 guarantees.     

Deportation of Suspected Terrorists with ‘Real Risk’ of Torture: The House of Lords Decision in Abu Qatada1

This note discusses the House of Lords' decision in RB (Algeria) (FC) and another v Secretary of State for the Home Department; OO (Jordan) v Secretary of State for the Home Department that the real risk of third‐party foreign torture evidence does not meet the required standard of unfairness so as to prevent the deportation of suspected terrorists under Article 6 ECHR. It considers three key issues that were raised by this case: Parliament has deliberately restricted the right of appeal from SIAC to the Court of Appeal on questions of fact; the procedure of using closed material by SIAC in the assessment of safety on return is unequivocally permitted by statute; and the conclusions by SIAC that diplomatic assurances contained in Memoranda of Understanding do not give rise to points of law and, therefore, are beyond review by the appellate courts.     

The Reasonable Expectation of Privacy and the Criminal Suspect

In In re JR38, the Supreme Court unanimously dismissed an appeal from a 14 year‐old boy who argued that the dissemination of his image, taken whilst he was participating in sectarian rioting, to local newspapers, violated his rights under Article 8 of the European Convention on Human Rights (ECHR). However, the Court was divided on whether or not the measures taken by the police engaged the applicant's Article 8(1) rights at all. This case raises fundamental questions as to the scope of private life in the context of criminal investigations, and the place of the European Court of Human Rights’ ‘reasonable expectation of privacy’ test in determining whether Article 8(1) of the ECHR is engaged. This case comment subjects the majority's interpretation of Article 8(1) to critical scrutiny, concluding that this interpretation may unduly restrict the scope of Article 8 protection for those subject to criminal investigations.     

Effet utile and the (re)organisation of national judiciaries: A not so unique institutional response to a uniquely important challenge?

The current repurposing of the principle of effet utile of European Union law can be found in the revolutionary steps taken by the Court of Justice in its application of Article 19 TEU. The implicit goal of this recent body of case-law is to equip national judges with the tools to resist domestic judicial reforms that affect their freedom to adjudicate independently. Considering Simmenthal to Unibet, Associação Sindical dos Juízes Portugueses to the latest case-law relating to the organisation of national judiciaries, this article contends that, while the case-law on judicial independence is unprecedented, the Court of Justice has gone to great lengths to ensure that the developments in EU law precipitated by its rulings are grounded in established doctrine. They follow a line of case-law that builds on the principle of primacy of EU law and the obligation to guarantee the effectiveness of EU law in the domestic legal order. Further, the current trajectory is for Article 19 TEU to form the operational basis of review of any judicially minded reforms, whether they be organisational (Article 19 TEU, together with Article 47 CFREU), limit actually or potentially the freedom for dialogue between national courts and the Court of Justice (Article 19 TEU together with Article 267 TFEU and Article 47 CFREU) or where they reduce the protection of the value of the rule of law (Article 19 TEU, Article 2 TEU, Article 49 TEU and Article 47 CFREU), with potential implications for the effective application in EU law of the principle of mutual trust.     

Assessing the best interests of the child in cases of cross-border surrogacy: inconsistency in the Strasbourg approach?

This article examines the approach of the European Court of Human Rights (ECtHR) to assessing the best interests of the child in three recent cases of cross-border surrogacy, namely Mennesson v France, Labassee v France and Paradiso and Campanelli v Italy. It is argued that these cases reveal inconsistency in the ECtHR’s assessment of the best interests of the child. In Mennesson and Labassee, the ECtHR found that the national authorities’ refusal to legally recognise the relationships between the children and the intended parents amounted to a violation of Article 8 ECHR, whereas no violation was found in Paradiso. A notable distinguishing feature of Paradiso was that there was no genetic relationship between the child and the intended parents, and it is this point that seemingly led the Court to assess the best interests of that child differently to the others.     

Gourmet Can Have His Keck and Eat It!

Abstract: The touchstone of the judgment of the Court of Justice in Keck has been the question of how to apply the criteria allowing the exclusion of selling arrangements from the scope of Article 28 EC, in particular in respect of national regulatory rules relating to advertisement. This article examines the evolution of the Court's approach to selling arrangements in the light of the requirements set out in Keck. The judgment in Gourmet has added to the debates as it highlights the issue of the ‘market access’ test as a reference for the assessment of factual discrimination in respect of selling arrangements covered by the Keck exception. The article focuses on the impact of Gourmet on the determination of the outer limits of the scope of application of Article 28 EC, and thus attempts to find a place for Gourmet within the spectrum between the rejection of the judgment in Keck at one end, and the refinement of the requirement relating to ensuring that there is no factual discrimination between imported and domestic products in the application of national rules covered by the Keck exception, at the other.