Pearson on Article 9 and the Eweida Judgment

From Oxford’s Human Rights Law Review, an essay by Megan Pearson (PhD Candidate, LSE) on Article 9 of the European Convention on Human Rights, particularly its prohibition on state interference with religious freedom:

Freedom of conscience and religion is probably unique in its potential to challenge almost every area of law. Since society contains a multitude of religious and moral beliefs, many religious people will constantly be faced with practices with which they disagree and will in a myriad of ways be constrained from living an ideally religious life. Not all of this can constitute an interference with the right under Article 9 of the European Convention on Human Rights (ECHR) to manifest belief ‘in teaching, practice and observance’. However, the European Court of Human Rights’ (‘the Court’) approach has historically been unnecessarily restrictive in considering whether an interference under Article 9(1) exists, thus shutting out cases at an early stage of reasoning and before justification is considered under Article 9(2). This approach has been narrowed even further by the British courts.

Article 9 has therefore been of limited use to claimants. The first full case to be heard on it by the Court was not until 1993 as earlier cases were ruled inadmissible by the European Commission of Human Rights. However, the Court’s approach is currently in a state of flux, as demonstrated by Eweida v United Kingdom and is moving to a broader approach that correctly moves the attention to the justification stage.

This article focuses on Article 9(1) and the question of interference. It does not consider when interferences will be justified. The first part will consider various proposals for deciding ‘where rights begin’. It will then address specific questions arising from ECHR and English case law on the topic, considering in particular whether it should be possible to claim an interference where the conflict could be avoided by resigning from employment or taking other similar action. The third section will consider the change brought by Eweida and discuss some remaining issues that have not yet been resolved.

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