Editor's blog | the face covering conundrum

Just over a year ago France adopted a law that criminalises the wearing of face coverings in public. As the ministerial order makes clear, the law applies to all garments making it impossible to identify the individual – such as masks and balaclavas – but it is generally accepted that the burqa is the main target.

On the day the new rules came into force a Muslim woman brought a claim against the French government in Strasbourg challenging their compatibility with the human rights convention.

The procedure is exceptional. For a case to be referred to Strasbourg an applicant must first have exhausted domestic remedies. Only in cases where the court is persuaded that the justice system in the defendant state would not meet fundamental procedural requirements does it allow direct applications.

That’s not the only unusual feature in this case. More than a week after the deadline, it seems France has failed to send in a response to the court’s ‘statement of facts’ requesting the government to consider the claim that the new law breached the right to freedom of religion, to private and family life, and discriminated on the grounds of religion and sex. As Solicitors Journal went to press last week we were still waiting to receive clarification on the status of the case. It is, according to the court, still in progress but not listed for a hearing.

There may be nothing to read into this. It could be that the case file hasn’t been updated yet, or that the deadline – not a strict time limit – was moved after a conversation about the reach and application of the new law. Often the procedure is informally suspended while negotiations are taking place and it could be the case in such a sensitive instance. In addition, only a minority of cases heard in Strasbourg – less than ten per cent – are dealt with using the combined written and oral procedure. In any event, the decision whether to hold an oral hearing is more likely to be finalised further down the line.

The religious discrimination cases brought by Nadia Eweida, Shirley Chaplin, Lilian Ladele and Gary McFarlane have been listed for a hearing on 4 September 2012, so, depending on how the SAS case progresses over the summer, it might be that it is joined to these proceedings.

The French public’s response to the new law has been mixed. Hospital managers have said their role was to provide medical care, not enforce the law, and public transport officials have said their job was to transport passengers not to do the police’s job.

Reports in the French press also suggest that the police have been instructed to take an understanding approach to law enforcement; French home office figures put the number of women stopped by police since the law came into force at 354, with 300 being fined. Of the 312 prosecutions brought, ten were discontinued and the rest resulted in judges issuing a verbal warning to the defendants.

Thirteen months later, the number of women wearing face coverings in public has dropped by half, according to the French government, and only 60 were stopped by police since January.

Does that mean that the law should be forgotten and quietly allowed to not be applied? Equality lawyers may not feel comfortable with this option but it could be the most useful one in this case. Since the 1905 law that formalised the separation of the state from the church, the relationship between the secular republic and religion has involved a careful balance of interests. The law banning face coverings is only the latest spike upsetting that balance – although possibly one of the more significant ones. The dents made by other attacks on religious freedoms into this unwritten concordat, such as the 2004 law on the wearing of religious items in schools, were ironed out through subsequent adjustments.

Much as the 2011 law may appear to be disproportionate and discriminatory, it is not clear that forcing the issue into a judicial process will help appease local communities, whether in France or elsewhere in Europe, including Britain. Discriminatory elements in the new law should certainly not be left unchallenged - the French Conseil d'Etat had major reservations about the draft law - but the rush to court in this case could do more damage than good.

Human rights compliance involves finding local solutions to issues phrased in terms of universal principles. Look no further than the Al-Khawaja or Horncastle cases on hearsay evidence, where a compromise was eventually reached between Strasbourg and the Supreme Court.

Following the same path in the SAS case would involve a lot of negotiating in Strasbourg and the national authorities providing acceptable assurances that the legislation is applied in a non-discriminatory manner - something the new French government may be a lot more willing to do than the previous one. It may not be appealing to those who prefer to see the law in black and white but it could be a lot more effective at fostering mutual understanding and respect between local communities.

Jean-Yves Gilg is editor of Solicitors Journal (jean-yves.gilg@solicitorsjournal.co.uk)