Saturday, 9 February 2013

yet more comments on the European Court decisions

Earlier articles on this can be found here, and then here, next here, and also here.

First, there was an article in the Church Times by Mark Hill headlined Strasbourg marks a sea-change in tolerance that is only available to subscribers, but which takes a rather different line to his earlier article at the Guardian website.

The second guest post at the ECHR Blog was written by Hana van Ooijen and is available at Eweida and Others Judgment Part II - The Religion Cases.

Another second post at Strasbourg Observers by Stijn Smet is titled Eweida, Part II: The Margin of Appreciation Defeats and Silences All.

Iyiola Solanke wrote at Eutopia Law about Clarification of the Article 9(2) ECHR qualification? Eweida and Others v the UK.

Ronan McCrea wrote at UK Constitutional Law Group: Ronan McCrea: Strasbourg Judgement in Eweida and Others v United Kingdom.

Julie Maher wrote at Oxford Human Rights Hub Religious Rights in the Balance: Eweida and Others v UK.

James Wilson has written a series of three posts on Eweida and Others v United Kingdom: Introduction, then what the court ruled and finally some comments.

And Andrew Worthley wrote at Ekklesia Law and religion: happy marriage or estranged acquaintances?

Posted by Simon Sarmiento on Saturday, 9 February 2013 at 9:22am GMT | TrackBack
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Categorised as: equality legislation

Firstly my sincere thanks for collating these very helpful and vauluable resources. These are not links to be read on your mobile on the way home but nonetheless do repay reading if you have the time (and interest).

There are a couple of curious things with this judgment. I must say that I do agree with Ronan McCrea about the dissenting opinions in Ladele. I think this is a real stain on the Court's previous high reputation. Much more of this and I think the Court itself will be tarnished as a political entity (a little like Antonin Scalia).

As for the Eweida win I have more sympathy for the dissent. BA seem to have behaved quite fairly and reasonably in changing the policy at the request of the employee yet that fact seems to have been turned against them which is rather circular.

The ruling means that private companies now need to be able to interpret the ECHR. I am not against the 'balancing operation' called for in the ruling - it seeems a very sensible way to go - but the balancing is not just in the public but also the private sector now and seems to significantly deepen the reach of the Convention in member states. Not only does one need to do a 'balancing operation' but one's workings out need to be agreeable to several layers of Courts all the way to the ECtHR and you might be clobbered for reviewing and changing one's policy. The complexities of this really mean 'everyone can wear a religious symbol unless there are weighty reasons why not'. That is not the end of the world and maybe even where we should be but I think it will cause problems in the future.

Taken all together the sensitivity shown towards the freedom of religion shows that the ECtHR is highly unlikely to give much credence to the idea that member states are obliged by the Convention to force churches to marry same sex couples.

Nevertheless I think this ruling's effect will be to make it marginally more likely for the UK to drop out (actively or more likely passively - by failing to implement rulings it doesn't like) of the ECHR system. In that context the dissents in Ladele will (and should) cause a degree of alarm.

Posted by: Craig Nelson on Saturday, 9 February 2013 at 6:30pm GMT
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