Council of Europe tells Member States to respect conscience and accommodate religious beliefs in the public sphere

In an important development for the protection of ‘freedom of thought, conscience and religion’ the Parliamentary Assembly of the Council of Europe has passed a resolution calling on its 47 Member states to: 

“accommodate religious beliefs in the public sphere by guaranteeing freedom of thought in relation to health care, education and the civil service provided that the rights of others to be free from discrimination are respected and that the access to lawful services is guaranteed”.

It also called on States to“ensure the right to well-defined conscientious objection in relation to morally sensitive matters.”

The resolution, passed on Wednesday (24 APR) by 148 votes to 3, will be welcomed by those in the UK and other European countries seeking the adoption of ‘reasonable accommodation’ as a sensible means of resolving growing instances of ‘clash of rights’ cases involving Christian identity.

It will also be noted by the European Court of Human Rights, a sister body of the Parliamentary Assembly, which has recently been asked to grant a Grand Chamber hearing in the cases of UK Christians Shirley Chaplin and Gary McFarlane.

UK cases

The situation facing UK Christians, including the cases of Shirley Chaplin and Gary McFarlane, was recorded in the report that was prepared for yesterday’s debate (see paragraph 83).

The report and resolution were prepared and tabled by Mr Luca Volonte, Chair of the European People’s Party, the largest political grouping at the Council of Europe.

Immediately after Wednesday's debate, Mr Volonte chaired a special briefing for Parliamentarians and representatives of national governments that focused on the cases of Nurse Shirley Chaplin and Relationships Counsellor Gary McFarlane.

Gary McFarlane, Paul Diamond (counsel in the cases) and Christian Legal Centre’s Director Andrea Minichiello Williams also spoke at the event.

In a preliminary judgment in January, the European Court strongly critiqued the UK’s recent approach to religious freedom. It rejected the UK Government's argument that the freedom to resign and find another job elsewhere automatically secured freedom of religion. It also rejected the Government's claim that the 'wearing of the cross' and beliefs about the nature of marriage were not intimately connected to core Christian identity and hence not protected by the European Convention.

Instead, the Court ruled that the Christians' moral stance on homosexual practice does constitute a legitimate religious conviction and so is in principle protected by the European Convention on Human Rights. 

The Court went on to conclude that the UK had failed to protect the religious freedom of British Airways’ worker, Nadia Eweida. It was the first time that the UK had ever been found in violation of Article 9 (‘freedom of thought, conscience and religion’).

However the Court fell short of ruling that the UK had been wrong to violate Mrs Chaplin and Mr McFarlane’s Article 9 rights, suggesting instead that the infringement was within the ‘margin of appreciation’ afforded to member states.

Grand Chamber

But in the Grand Chamber application submitted earlier this month, the pair argue that Article 9 protections in the UK will be rendered almost meaningless in practice if the Court does not give clearer direction, especially in a society that displays increasing hostility to Christian belief.

Nurse Shirley Chaplin is urging the Court not merely to rely on the Government’s assertion that her Confirmation Cross presented a ‘health and safety risk’ but to consider the evidence in the case. Otherwise, she argues, the Government can effectively introduce a blanket ban without justification or scrutiny.

Gary McFarlane, meanwhile, highlights how he was effectively penalised for ‘thought-crime’ since no-one would have been denied access to a service as a consequence of his possible conscientious objection to providing same-sex sex therapy. Such 'policing of thought' has disturbing consequences not only for Christians but for the future of a free society.

A decision on whether the Grand Chamber will hear the cases is not expected for several weeks.

The cases come at a time of increasing speculation about the UK’s future relationship with the European Court of Human Rights.

“Sensible” way forward

Responding to the resolution, Andrea Minichiello Williams, Director of the Christian Legal Centre, said:

“We are pleased that the influential Parliamentary Assembly has voted to underline the crucial importance of freedom of thought, conscience and religion for ensuring societies that are genuinely free and flourishing. We are also delighted to see the call for reasonable accommodation to protect that freedom. We urge the European Court of Human Rights to insist on such accommodation as a sensible, practical way forward and we call on the UK to begin to reflect this important principle.”

“We hope that the referral to the Grand Chamber of the European Court of Human Rights will be accepted. We are deeply concerned that the European Court of Human Rights can recognise an interference with Shirley Chaplin and Gary McFarlane’s ‘freedom of thought, conscience and religion’ but that those rights are wholly undermined in the member states where the prevailing political ideology conflicts with that belief. In these ground-breaking cases politics meets law. Solutions need to be found to set the tone for religious freedom across Europe.”