Article 9 at a Crossroads: Interference Before and After Eweida

Abstract

This article considers when an interference with Article 9 should be found. It argues that while some limits are necessary, it is sufficient that there is 'intimate connection' between a religiously motivated act and a belief, and there should be no requirement of religious obligation or impossibility. It demonstrates that the historic approach of the ECtHR has been to overly limit the circumstances in which an interference with rights can be claimed, particularly in employment. It argues that the approach developed in Eweida v United Kingdom demonstrates a deeper understanding of the importance of Article 9, giving it broader effect, but that this is likely to mean that the Court will be faced with hard decisions as to when religious claims can be protected.

Religious discrimination and the ‘hierarchy of rights’

“…There were greater problems with cases brought under Art 9 ECHR, as for example in R(Begum) v. Denbigh High School [2007] 1 AC 100 where it was held that there was no interference with the claimant’s rights when she was prohibited from wearing a jilbab to school as there were other schools she could attend. See Pearson (2013).…”