Editorial: Strasbourg performs a double service for us

Ms Eweida's victory will make life a bit more difficult for Britain's critics of the ECHR

Tuesday 15 January 2013 20:45

As a newspaper we have never been among the detractors of the European Court of Human Rights in Strasbourg, and the verdicts it handed down today in four cases of alleged discrimination against Christians in Britain only support our view of its usefulness and its general good sense. Cumbersome and overloaded it may be – though improvements are in train – but the court adds an extra dimension to the exercise of justice nationally and it is far better that it exists than not.

Today's rulings concerned four high-profile and contentious cases, in which Christians claimed that their right to religious freedom under the European Convention had been violated. The court upheld only one of the complaints, that of Nadia Eweida, who argued that her employer, British Airways, had discriminated against her by banning her from wearing a cross. Those wearing symbols of other faiths, she argued, had been treated differently.

The verdict was immediately hailed as a breakthrough that would entitle all employees to wear a symbol of their religion. But this is not quite true – first, because BA has allowed staff to wear discreet symbols of their religion for the past six years, as have others, and, second, because the court's ruling in another case, also involving the wearing of a cross, went the opposite way. The court decided here that the NHS was justified in banning a nurse from wearing a cross on a chain on safety grounds.

The other two cases were brought by people suspended or dismissed because of their attitude towards homosexual relationships. One, a council registrar, had refused to conduct civil partnership ceremonies; the other, a marriage counsellor, had said he might refuse to advise same-sex couples.

The court found that, as in the other two cases, the claimants were acting in good faith and that their religious strictures were genuine. It also recognised a genuine clash between their individual beliefs – on homosexuality – and the conditions of their employment. But it ruled that the employers acted as they did in order to protect the right of those using their services not to be discriminated against. Essentially, the court found that their right to equal treatment took precedence and employees could not pick and choose which parts of their job they did.

In each case, however, the court conceded that the judgments were difficult and the arguments finely balanced. Which is one reason, of course, why these cases reached the European Court at all. It is never easy to decide precedence between competing rights, and even the most rigorous and respected national courts need, on occasion, to be challenged.

In the event, the UK courts emerged well from the test. Three of their four verdicts were upheld, and in the fourth, that of Ms Eweida, the compensation awarded was modest. In the clarity of its rulings and their appreciation of complexity, however, the European Court performed a double service. Most immediately it helped to clarify some finer points of the law as it relates to religious freedom and discrimination. Employer and employee should now know better where they stand.

But the ruling in favour of Ms Eweida does more than clarify the law. It also makes life a bit more complicated for the UK's die-hard critics of the European Court, who are predominantly on the political right. This was a case in which British courts were found wanting in their defence of the rights of Christians. Ms Eweida's victory will make it that much harder for those same critics to maintain, next time the court hands down a verdict they do not like – on, say, migrants' rights – that Strasbourg is just a pernicious waste of time and money.

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