Chapter 16 Guidance on answering the exam questions

1. In SAS v France (above) the ECtHR accepted the compatibility of France’s ban on the burqa with Article 9.

Critically evaluate the reasons for the decision and discuss whether they provide a reasonable basis for protecting the right to manifest belief of some Muslim women.

• This question requires consideration of a particular case. But it is an important one and one in which the answer should also demonstrate general understanding of the application of Article 9.
• Consider the general background to the case.
• A good answer might note that by accepting the case as admissible the ECtHR departed from its usual practice of only dealing with alleged interferences with applicant’s rights and not to deal with abstract questions about the compatibility of laws with the Convention.
• Consider the case. The ECtHR accepted that wearing the burqa was a manifestation of belief.
• Therefore, the law, albeit considered in general terms, was an interference. Therefore, the case focuses on justification.
• What is most interesting about the case is that the ECtHR accepted that the ban was prescribed by “law” and that in the circumstances, given a broad margin of appreciation, it was proportionate. Unusually, the focus of the case was on the purpose. Various arguments that France put forward were rejected. The one the Court accepted was the purpose of social solidarity, of protecting the conditions for living together; this was an aspect of the “rights and freedoms of others”.
• This reasoning, the focus on purpose, can be the focus of critical analysis. Discuss in particular the arguments that the Court rejected (e.g. gender equality).
• In critical discussion you could also note the wide margin of appreciation given to states over this difficult issue.
• Locating this case in the context of others such as Leyla Sahin or Refah Partisi v Turkey could be useful. These cases indicate doubts in the Court about the compatibility of some aspects of Sharia with human rights.

2. Able and Baker are both civil servants working for the transport division of the Ministry of Defence. They are to be sent to an overseas country to support British forces which, under a UN Mandate, are there to attack and defeat rebels who also threaten the United Kingdom. Both object to being sent.

• Able’s objection is religious—he is a devout Christian and pacifist.
• Baker’s objection is political—he believes that the army he will be supporting is likely to be doing enormous environmental damage in Syria.
• Although their terms of employment suggest that the Civil Service can send them anywhere in the world, they both assert they have a rights based on Article 9 not to be sent and that alternative employment should be found.

Advise the Secretary of State for Defence who must decide whether to compel them to go. Your advice should be strictly limited to the issues raised by Article 9.

• This question involves the extent to which there are rights to conscientious objection in the ECHR/HRA. The assumption is that the UK courts will, generally, follow the views of the ECtHR (section 2 HRA).
• Able: his objection is religious. However, nothing in the proposed posting restricts his ability to believe what he wants and to worship.
• Therefore, any interference will only engage Article 9(1) if his refusal of duty (under his contract of employment) is based on a manifestation of belief. In military cases, such as Khan, the court has held that conscientious refusal of military duty was not a manifestation of belief.
• If a court, given the context, does see this as an interference with a manifestation of belief, the justifications in article 9(2) will be in issue. The focus is likely to be on proportionality and whether sending Able abroad will represent a fair balance of interests. One factor that may be important relates to the fairness of the procedures by which the issue is addressed by the civil service (that the issue of conscience can be considered), see, for example, R v Lyons.
• Baker’s position is similar. It has been accepted, at least in the English courts, that a political objection, based on environmental values, can be a political belief protected by domestic equality law. This view was based on integrating Article 9 with domestic equality law (Grainger v Nicolson). Again, therefore, the issue will be resolved by reference to a proportionality type judgement in which the strength, for Able, of the arguments for conscientious refusal will be compared with the public interest in an effective foreign policy.