Wednesday, 22 May 2013

Will Eweida and Others get referral to the Grand Chamber?

As I reported yesterday, the European Court of Human Rights will decide next Monday whether to grant the applicants' request that Eweida and Others v the United Kingdom be referred to the Grand Chamber. 

Of interest to readers of this blog are the complaints of the two applicants, Ladele and McFarlane, relating to sexual orientation - which I originally detailed on the ECHR Blog.   

There is no way of predicting the outcome of the Court's decision. Both applicants will be arguing that the Chamber judgment failed to give adequate protection to their rights under the Convention to exercise their freedom of religious belief without being subject to discrimination.

What chance do they have?

There are some factors not in their favour:

  1. The Chamber vote was decisive (unanimously against McFarlane, 5-2 against Ladele);
  2. The Court confirmed that the UK government had not exceeded its margin of appreciation when attempting to strike a fair balance between the rights of these individuals and the needs of the wider community;
  3. In holding that the UK acted within its margin of appreciation, the Court confirmed that the measures taken to strike a fair balance - in the form of UK equalities legislation - were justified in principle and proportionate;  
  4. It is the applicants who are seeking referral, rather than the state (and the state's margin of appreciation has been recognized and confirmed).
In respect of the Ladele complaint there is one factor in this applicant's favour:

  1. The Joint Partly Dissenting Opinion of Judges Vučinić (Montenegro) and De Gaetno (Malta), which as I have previously discussed in terms of the distinction they made between 'gay rights' and 'fundamental human rights', actually makes a far more compelling case about proportionality than that managed by the applicant. It elevates (as religious opponents of sexual orientation equality often do) the applicant's objection to homosexuality to one of 'conscientious objection' that requires the highest protection.

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