Editor's blog | Fit for our century

The right to religious freedom in article 9 was intended to respond to one of the 20th century’s greatest oppressions. Written in a style inherited from the 19th century, it is now being used in the 21th century as a weapon of active legal defence.

But public bodies and the courts are yet to draw clear lines around this right, a task made particularly difficult where it conflicts with other rights protected under the convention.

In the Ladele case, for instance – one of the four in which the Strasbourg court will be handing down judgment tomorrow – the Court of Appeal found that Islington Council had not discriminated against a registrar who refused to perform civil partnerships. Last year, a court found that holding prayers before council meetings was against the law, but not under article 9 rounds. And only last week, the Employment Appeal Tribunal found in the case brought by Christian care worker Celestina Mba against Merton borough council that local authorities could be discriminating if they forced employees to work on a Sunday without providing an objective justification.

Considering the position from the perspective of economic rights under the EU treaty has provided other arguments. In the 1990s the right to provide services was used to allow shops to open and service providers to operate on Sundays. Not that is has been plain sailing since: Scottish ferry company Caledonian McBrayne had to contend with serious local opposition before it could start running a Sunday service between Stornoway and mainland Scotland (it eventually did in July 2009).

Inevitably there are still frictions, most notably on the questions of indirect discrimination and ‘reasonable accommodation’. How do we, for instance, reconcile the practice of making prayer rooms available on employers’ premises with the ban on wearing a small piece of jewellery in the shape of a cross?

The Eweida, Chaplin, Ladele and McFarlane cases arose out of different circumstances, although all four are in the context of public service. The first two consider religious freedom mostly on its own as a positive right. In the other two, it is opposed to the freedom not to be discriminated on grounds of sexual orientation. By joining these cases together the Strasbourg court indicated not only that they raised related issues but also that it would attempt to produce a set of principles that can be consistently applied to a variety of situations.

Whatever the court decides, however, its ruling is unlikely to be the last word on religious discrimination claims. The case against France over the ban on face coverings in public places is ongoing and will raise further questions about the extent to which the state can lawfully regulate the display of religious beliefs. But the lack of finality is not necessarily a poor outcome. The convention is a living instrument. It needs to be used, argued and shaped as society evolves and new norms develop. To work, this depends on individuals taking an active role in enforcing what they believe to be their rights, whether they are believers or not, gay or straight. This is the price to pay for a convention fit for the 21st and future centuries.