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Durham University

Durham Law School

Staff profile

Publication details for Professor Ian Leigh

Leigh, Ian & Hambler, Andrew (2014). Religious Symbols, Conscience, and the Rights of Others. Oxford Journal of Law and Religion 3(1): 2-24.

Author(s) from Durham

Abstract

This article considers some of the features of the judgment in Eweida and Others v United Kingdom, which are positive from a religious claimant’s perspective—not least the welcome removal of unhelpful definitional ‘filters’ preventing individuals from making successful Article 9 ECHR applications, and we explore the implications of this for both European and domestic law. We also consider the arguably less satisfactory features of the judgment, particularly the absence of a full consideration of proportionality balancing, most obviously with regard to Ladele’s application. We argue that the helpful analysis of a minority judgment correctly conceptualizes the claim as one of individual conscience rather than the right to discriminate against others. To illustrate this point, we propose a ‘reversibility test’ requiring the court to identify which other individuals’ rights would be violated if the religious claimant was accommodated. In Ladele’s case we argue that the harm to others was purely notional and amounted to no more than ‘bare knowledge offence’ at the idea of accommodation (which is not protected under the ECHR). Finally, we consider the extent to which, after the judgment, a public authority might be compelled to require staff to act in conformity with its non-discriminatory goals.