Feminist philosophers right again…

Okay, that’s possibly overstating it slightly.  But we posted in July about the worrying decision of the UK’s Equality and Human Rights Commission to intervene in four cases being taken to the European Court of Human Rights. These cases involved

  1. Being forbidden to wear a cross at work (Eweida, Chaplin);
  2. Being required to perform a public service without discriminating against gay people (McFarlane, Ladele).

In all four cases, UK courts had found that there was no discrimination on grounds of religion, and the EHRC’s press release suggested it was equally critical of the UK courts’ positions in all four cases. But now – vindication! – it has apparently changed its position.  The full consultation document is on the EHRC website, and says,

We propose to intervene in:

  • Eweida and Chaplin on the basis that the Courts may not have given sufficient weight to Article 9(2) of the Convention.
  • Ladele and Mcfarlane on the basis that the domestic courts came to the correct conclusions.

If you feel strongly about this, do respond to the consultation *by 5 September* to support the EHRC’s new position. I shall certainly be doing so.

4 thoughts on “Feminist philosophers right again…

  1. This consultation is kind of an odd thing. Is the EHRC just trying to focus-group its ideas here? Very few non-jurist members of the public would be qualified to assess whether the national courts had correctly applied the law, one would think, so what is EHRC hoping to gain by asking that very question? This sounds more like a public invitation to sound out current public sentiment about the result of the underlying rulings, which seems like the sort of thing properly kept separate from the question of whether the rulings were correct.

  2. Nemo, I agree – it does seem an odd topic for a public consultation. In practice, I’m guessing the majority of responses will be from associations and organisations who have a particular interest in the topic, like (say) the Discrimination Law Association or the Christian Legal Centre.

    Interestingly, though, there is a sense in which correct application of European human rights law actually does depend on public sentiment, because the European Court of Human Rights leaves some room to each member state to apply human rights standards slightly differently in the light of national cultures and practices. In relation to religion, that means it will take into account things like Turkey’s commitment to secularism when deciding whether a ban on wearing headscarves at a university breaches a woman’s right to manifest her religion – such a ban might be evaluated differently in a different country.

    So I assume the EHRC will be saying things in its submission about the UK’s particular approach to religion in the public sphere and… um, wants to be told what that approach is…? If anyone’s got any ideas, I’m sure they’d be grateful!

  3. [Since the respective acronyms for the European Court of Human Rights and the UK’s Equality and Human Rights Commission are confusingly similar, I’ll use “Strasbourg” as a metonym to refer to the former below.]

    Heg, I take your point about national cultures and practices (though the extent of that flexibility under the Convention and Strasbourg jurisprudence could be debated). Though I note that it shouldn’t apply for the Eweida and Chaplin cases, where the EHRC is intervening to challenge the national courts -since Strasbourg is not going to find fault with a national court decision on the basis that the national court failed to take proper account of its own country’s societal mores.

    Anyhow, this consultation makes the EHRC come across as a bit clueless, in my opinion. They already have something of a reputation for incompetence and waste, and this consultation doesn’t exactly contradict the impression.

  4. >this consultation makes the EHRC come across as a bit clueless, in my opinion. They already have something of a reputation for incompetence and waste, and this consultation doesn’t exactly contradict the impression.<

    Yep, can't argue with that!!

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