TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): facts of this case and the history of the national legal proceedings are, we submit, of crucial importance. And we stress the following points. First, as I have said, Ms Liddell
AP1 (Applicant): had already been employed as a marriage registrar for a number of years before the enactment or coming into force of the Civil Partnerships Act. In that capacity, there was no question
AP1 (Applicant): of her being required to register same-sex unions. She did not volunteer for a career
AP1 (Applicant): which involved the registering of civil partnerships. Mr Eadie, in his submission, suggested that
AP1 (Applicant): these were cases of employees seeking to force their employer to alter their terms and conditions.
AP1 (Applicant): Not so. This was a case of Ms Liddell's employer seeking to force her to accept an
AP1 (Applicant): alteration in her terms and conditions and disciplining her for gross misconduct when she refused to accept it. Secondly, the new national legislation itself permitted Islington
AP1 (Applicant): to take a decision not to designate all of its marriage registrars as civil partnerships registrars. Islington was only required to have sufficient civil partnership registrars
AP1 (Applicant): to provide the service. A conscientious objection such as that of Ms Liddell could have been
AP1 (Applicant): accommodated under national law. This is thus not a case in which the national legislature
AP1 (Applicant): had decided that all marriage registrars should conduct civil partnerships. Third, the national
AP1 (Applicant): courts found as a fact that accommodating Ms Liddell's conscientious objection would not have caused any detriment to the service received by same-sex couples in Islington.
AP1 (Applicant): There is no question in this case of the acts of the local authority being necessary to prevent discrimination against same-sex couples. The right to equal treatment of same-sex couples
AP1 (Applicant): seeking a civil partnership could have been accommodated alongside the right of a long-standing marriage registrar like Ms Liddell during this transitional period of rapid social change.
AP1 (Applicant): Fourth, Ms Liddell's religious belief is a mainstream traditional Christian belief. It is derived
AP1 (Applicant): from scripture. It is shared by most major Christian European denominations, including
AP1 (Applicant): the Roman Catholic Church, the Orthodox Churches and many Protestant churches. Although many
AP1 (Applicant): people take a different view from Ms Liddell, her belief is plainly a belief that must be considered worthy of respect in a democratic society. This is an important point because
AP1 (Applicant): some of the interveners have sought to compare Ms Liddell's belief with the belief of a person who refuses to conduct a mixed-race marriage. But such a belief would not be worthy of respect
AP1 (Applicant): in a democratic society, unlike the traditional Christian belief of Ms Liddell that marriage is a union between a man and a woman. Fifthly, the effect of Islington's treatment on Ms
AP1 (Applicant): Liddell has been to deprive her of her livelihood and to cause her serious distress and financial loss. Sixthly, no proper analysis of Islington's purported justification for its treatment
AP1 (Applicant): of Ms Liddell has ever been conducted by the national courts. The aims pursued have been
AP1 (Applicant): repeatedly reformulated and were put in a different way again by Mr Eadie today. No
AP1 (Applicant): proportionality analysis has been conducted. There has been no attempt to balance Ms Liddell's
AP1 (Applicant): rights, including her right to equal treatment in the manifestation of her religious beliefs against Islington's aims, or to consider what alternatives were open to Islington to avoid the severe adverse consequences suffered by Ms Liddell. No weight at all has been given
AP1 (Applicant): by the Court of Appeal to Ms Liddell's fundamental right undoubtedly engaged by this treatment.
AP1 (Applicant): On a proper analysis, any of the aims now put forward by the United Kingdom could have been met without requiring Ms Liddell to be designated as a civil partnerships registrar.
AP1 (Applicant): Indeed, the achievement of the local authority's asserted aim of demonstrating its commitment to equality of opportunity is in fact defeated by its treatment of Ms Liddell, because what the local authority has done by its doctrinaire approach is to discriminate against Ms Liddell and subject her to a detriment because of her religious belief, contrary to the values of diversity and equality which Islington purported to be upholding.
AP1 (Applicant): In these circumstances, the following questions arise under Article 14. First, does Ms Liddell's
AP1 (Applicant): claim fall within the ambit of Article 9 so that Article 14 is engaged? Secondly, was
AP1 (Applicant): she treated to her detriment in the same way as those who did not have a religious conscientious objection to the performance of civil partnerships, even though her circumstances were materially different from those of such employees? And thirdly, has her treatment been shown to be
AP1 (Applicant): justified as a proportionate means of meeting a legitimate aim?
AP1 (Applicant): We submit that there is no doubt that Ms Liddell's case engages Article 9 and falls within its ambit. Although she does not need to go so far because this is an Article 14 case, on
AP1 (Applicant): the facts of this case, her refusal to conduct or register civil partnerships was indeed the manifestation of a religious belief, just as this Court has held that a refusal to undertake military service on the part of a Jehovah's Witness is the manifestation of a religious belief.
AP1 (Applicant): Contrary to the submissions of the United Kingdom, there is no need for Ms Liddell to show a prima facie breach of Article 9 in order for Article 14 to be engaged. The United
AP1 (Applicant): Kingdom's submissions on this point are contrary to the established case law of this Court, going back at least 30 years to the case of Abdul Aziz and the United Kingdom. We note
AP1 (Applicant): that Mr Eady has not sought today to grapple at all with this point.
AP1 (Applicant): There is also no doubt that Ms Liddell was treated by Islington in the same way as other employees who had no conscientious objection, and that she suffered a disadvantage arising from being treated in that way. As this Court has recognised in the case of Thliminos and
AP1 (Applicant): Greece, treating a person in the same way as another whose circumstances are materially different is a form of discrimination which will be contrary to Article 14 unless objectively justified. To put the matter in a different way, the apparently neutral requirement applied
AP1 (Applicant): by Islington that all of its registrars should be civil partnerships registrars placed Ms Liddell as a committed Christian under a particular disadvantage, and such treatment is discriminatory unless justified.
AP1 (Applicant): Finally, no justification for Ms Liddell's treatment has been demonstrated. No clear
AP1 (Applicant): or coherent legitimate aim has been identified. It has not been shown that the treatment of
AP1 (Applicant): Ms Liddell was proportionate, and in the absence of any proper proportionality analysis conducted by national courts, it is not appropriate for a broad margin of appreciation to be afforded to the United Kingdom.
AP1 (Applicant): The aims pursued by Islington have been differently expressed by both Islington and the United Kingdom at different stages in the proceedings. In the tribunal, Islington stated that its
AP1 (Applicant): aim was to provide an effective civil partnership arrangement service. This aim was accepted
AP1 (Applicant): by the tribunal as legitimate, but the means for achieving it were clearly found to be disproportionate because the aim could have been achieved without designating Ms Liddell as a civil partnerships registrar. Since then, the government has sought to reformulate that
AP1 (Applicant): aim. The government initially argued in this court that the local authority's aim was
AP1 (Applicant): to provide equal access to services, irrespective of sexual orientation, and thereby communicate a clear commitment to non-discrimination. This formulation could not justify the discrimination
AP1 (Applicant): in this case, since on the fact it could have been met without designating Ms Liddell. The
AP1 (Applicant): government now restates its legitimate aim as being that its employees should not treat less favourably or withhold services from members of the public on grounds of sexual orientation. But this aim also could have been met without designating Ms Liddell. Had
AP1 (Applicant): she not been designated as a civil partnerships registrar, there would have been no question of her withholding services from members of the public. She would not have been employed
AP1 (Applicant): to perform such services, as indeed she was not when first employed by the council.
AP1 (Applicant): So all the aims identified could have been met without designating Ms Liddell. Moreover,
AP1 (Applicant): the national courts have failed to give any weight to the adverse effects of Islington's conduct on Ms Liddell's rights, or to seek to balance those effects against the importance of the aims pursued. The Court of Appeal gave no consideration to the fact that the means
AP1 (Applicant): adopted by Islington were contrary to its own policy, its equal opportunities policy, which expressly included a prohibition on religious discrimination and afforded it equal weight with discrimination on grounds of sexual orientation. That policy stated Islington
AP1 (Applicant): would actively remove discriminatory barriers that can prevent people from obtaining employment opportunities for which they are entitled.
AP1 (Applicant): This is not a case in which a broad margin of appreciation should be afforded. The appropriate
AP1 (Applicant): role for a margin of appreciation would be in the context of assessing the results of a properly conducted proportionality exercise. Where no such exercise has been conducted
AP1 (Applicant): by the national court, it is not appropriate to give the Member State such a margin.
AP1 (Applicant): Moreover, we adopt the submission of Mr Dingerman's that religious rights are a fundamental part of the Convention. This is a suspect category of discrimination, expressly prohibited under
AP1 (Applicant): Article 14, closely related to ethnicity, and cannot be justified in the absence of very weighty reasons.
AP1 (Applicant): The national authorities have failed to appreciate there were two rights to equal treatment engaged in this case, which required balanced consideration. Instead, they have focused only on the rights
AP1 (Applicant): of same-sex couples, which on the particular facts of this case were not in fact in jeopardy.
AP1 (Applicant): We submit that the celebration, toleration and accommodation of diversity to which importance is rightly attached as being central to the achievement of equality of opportunity has wrongly been disregarded by the local authority, the Court of Appeal and the United Kingdom in this case.
AP1 (Applicant): Before I end my presentation, there is one important point on which I would like to update the Court. At paragraph 104 of our written observations of January 2012, we noted that
AP1 (Applicant): the Government of the Netherlands had asked the Council of State to give advice on the very same issue that arises in this application, the question of marriage registrars with a conscientious objection to performing same-sex marriages. The Council of State has now issued
AP1 (Applicant): its advisory opinion. We obtained a translation yesterday and we have copies available for
AP1 (Applicant): members of the Court, if you would like them.
AP1 (Applicant): In summary, the Dutch Council of State has adopted precisely the same analysis that we have adopted in our application. It has found that dismissing an existing marriage registrar
AP1 (Applicant): with a conscientious objection constitutes unjustified, indirect discrimination on grounds of religious belief and would be contrary to Article 14, read with Article 9 of the Convention because it falls within the ambit of Article 9, even though it would not be a breach of Article 9 read alone.
AP1 (Applicant): The Council of State has rejected precisely the justification advanced by the United Kingdom in this case and has said that the objections of conscience of registrars who take the traditional view of marriage deserves respect in a tolerant democratic society and must be accommodated where this is reasonably possible without a detrimental effect on the provision of the service.
AP1 (Applicant): The importance of this principle of reasonable accommodation, which has now been endorsed by the Dutch Council of State, reflects the observation of Justice Sachs in the South African Constitutional Court in the case of Foury. He said,
AP1 (Applicant): The State should, wherever reasonably possible, seek to avoid putting believers through extremely painful and intensely burdensome choices of either being true to their faith or else respectful of the law.
AP1 (Applicant): For all of these reasons, we invite the Court to find that there has been a violation of Ms Liddell's right to equal treatment under Article 14 of the Convention and to award her the just satisfaction which she seeks.
Lech Garlicki (JudgeP): And now I call Mr. Diamond.
AP3 (Applicant): Mr. President, members of the court,
AP3 (Applicant): the cases of Shirley Chaplin and Gary McFarland are not complex, but they raise very serious issues for the United Kingdom and for members of the Council of Europe.
AP3 (Applicant): The issues before this esteemed court today are to be summarized in three main points.
AP3 (Applicant): First, this court must determine to what extent freedom of thought, conscience, and religion must be protected and guaranteed, not just for applicants here today, but for Europeans as a whole.
AP3 (Applicant): The effect of the respondent's position in this case is essentially to limit Article 9 to mere freedom to worship in private or in a church setting.
AP3 (Applicant): That leads to the second issue before this court, which is to find a workable, bright-line test by which to determine in the workplace context to what extent freedom of thought, conscience, and religion may be limited by the scope of this test necessary in a democratic society.
AP3 (Applicant): In our submissions, the doctrine of reasonable accommodation has shown itself to be the most workable standard to protect both the interests of the employer and employee within Article 9.
AP3 (Applicant): Thirdly, in my respectful submission, this court is called upon to determine the extent to which conscience is to be protected under Article 9.
AP3 (Applicant): Freedom of thought, conscience, and religion are inextricably linked.
AP3 (Applicant): And as this court decided in Britannia and Armenia, that the protection of conscience can be extended merely beyond the right to be exempt from military service.
AP3 (Applicant): Regrettably, the courts of the United Kingdom have not adopted a simple, straightforward, principled approach to Article 9 so as to enable the religious adherent to live his life with the least violation and infringement on his religious beliefs.
AP3 (Applicant): Regrettably, the courts instead appear to have created insurmountable hurdles to ensuring this freedom.
AP3 (Applicant): National courts have ruled on whether the religious manifestation is a mandatory requirement, whether religious apparel is a scriptural requirement, whether the claimant is part of a group as a sole adherent is not protected under indirect discrimination.
AP3 (Applicant): The exact meaning and context and size of this group remains unknown.
AP3 (Applicant): Let's begin with Shirley Chaplin.
AP3 (Applicant): Mrs. Chaplin has worn a cross on a chain around her neck
AP3 (Applicant): since her confirmation in 1971 and considers it to be a manifestation of her faith on her understanding of the scriptures.
AP3 (Applicant): She's worked as a nurse for approximately 30 years with a faultless employment record and has never stopped wearing the cross.
AP3 (Applicant): In those 30 years of wearing the cross, the cross has never injured a single patient.
AP3 (Applicant): The hospital, ignoring their own policy to permit religious and cultural apparel, argued health and safety issues that the cross and chain might cause injury if an elderly patient pulled on it.
AP3 (Applicant): To alleviate such concerns, Mrs. Chaplin
AP3 (Applicant): suggested that a magnetic clasp could be fitted to the chain, which would allow it to break when pulled, thus solving the problem.
AP3 (Applicant): However, the hospital rejected this as a solution and suggested that the cross could scratch a patient.
AP3 (Applicant): There was no nature of any form of compromise that took place with other faiths to adapt their religious apparel to suit the hospital requirements.
AP3 (Applicant): The cross was considered a piece of jewelry that could be hanged around the lanyards or worn as an earring, but no respect or recognition was given of the religious significance.
AP3 (Applicant): No evidence has been submitted to support the claim that the cross ever posed a health and safety risk.
AP3 (Applicant): What is equally clear is the refusal, in our submission, to make an allowance for her to wear the cross, even after any legitimate safety issue had been alleviated, breached the standard and the necessity standard used by this court in analyzing where a violation of Article 9 has occurred.
AP3 (Applicant): Freedom of thought, conscience, and religion is a fundamental right, both under European and British law.
AP3 (Applicant): Christians enjoy the same rights to adorn themselves with religious symbols and clothing of their choosing as does other religions.
AP3 (Applicant): There is no issue here for Muslim dress.
AP3 (Applicant): Why?
AP3 (Applicant): For Christians.
AP3 (Applicant): The failure to provide even the most simple of accommodations for the right of a patient to wear a cross, particularly where other religions have been accommodated, in our submission, is a clear breach of the convention.
AP3 (Applicant): Furthermore, any difference in treatment on the basis of religion will require very weighty reasons to be justified under Article 14.
AP3 (Applicant): These reasons do not exist.
AP3 (Applicant): But that doesn't end there.
AP3 (Applicant): Further, a week after the judgment in this case, the Department of Health announced a modification of the health and safety rules in relation to coverings below the elbow to accommodate nurses of the Islamic and Sikh faith.
AP3 (Applicant): It is inconceivable that the hospital was not aware of this development to modify health and safety rules to accommodate religious practice.
AP3 (Applicant): Soon after the media interest in this case ended, Mrs. Chaplin lost her clerical employment
AP3 (Applicant): as the position came to an end.
AP3 (Applicant): Now Shirley has no employment.
AP3 (Applicant): Mrs. Chaplin is suffering economically,
AP3 (Applicant): feels humiliated, and disrespected.
AP3 (Applicant): And the National Health Service has lost a good nurse willing to work.
AP3 (Applicant): There is no legitimate reason to discriminate in this way against her and against Christians in general.
AP3 (Applicant): Mrs. Chaplin, who sits in the court today behind me,
AP3 (Applicant): wanted to just say this.
AP3 (Applicant): The tribunal left me shattered.
AP3 (Applicant): My world was turned upside down.
AP3 (Applicant): My pay band immediately dropped.
AP3 (Applicant): The knowledge of the role I had enjoyed for the majority of my adult life was no longer open to me.
AP3 (Applicant): They also implied that I was a danger to patients because of my failure to remove my cross.
AP3 (Applicant): I can't put into words how that made me feel.
AP3 (Applicant): My whole nursing career was based on this one moment, not over 30 years of caring and devotion.
AP3 (Applicant): My finances are now limited, and I do not have the lifestyle I anticipated.
AP3 (Applicant): Real people, real lives, real damage and suffering.
AP3 (Applicant): Let's look at the case of Mr. McFarland.
AP3 (Applicant): Since 2003, Gary McFarland worked as a counselor.
AP3 (Applicant): He now is finding employment very difficult because he's unable to register with any reputable professional body, because he was dismissed for gross misconduct on grounds of sexual orientation, something which sadly labels him as a homophobe.
AP3 (Applicant): Nothing could be further from the truth.
AP3 (Applicant): Mr. McFarland's hurt is all the more greater
AP3 (Applicant): because he'd always acted professionally.
AP3 (Applicant): He had, and note this, never refused to counsel a same-sex couple.
AP3 (Applicant): He'd counseled two such couples in the past and believes that Christianity and non-discrimination principles are fully compatible.
AP3 (Applicant): His trouble arose on a training course.
AP3 (Applicant): He decided not to watch a film called Broadback Mountain, a film about a homosexual relationship, because he was tired.
AP3 (Applicant): Suspicion arose among his co-workers because he was a Christian.
AP3 (Applicant): He was required to state his position in the counseling of same-sex couples in psychosexual therapy.
AP3 (Applicant): He had expressed in confidence to his supervisor some private anxieties.
AP3 (Applicant): His supervising therapist breached all professional rules with impunity to reveal these private anxieties.
AP3 (Applicant): Mr. McFarland did not know himself
AP3 (Applicant): what he would do if required to give directed sexual therapy to a same-sex couple.
AP3 (Applicant): He'd had a similar problem with couple counseling and relations to same-sex relationships, but this had been resolved to the satisfaction of all parties.
AP3 (Applicant): We say Her Majesty's government's submission on the beliefs of Mr. McFarland are extraordinary
AP3 (Applicant): because he himself did not express what his own beliefs were.
AP3 (Applicant): All we know in this case is that a private citizen had private religious views that an employer and the state did not deem worthy of respect.
AP3 (Applicant): He was required to state his position on giving same-sex therapy to same-sex couples without having worked through what he himself believed and prospectively deny his own beliefs as a condition of employment.
AP3 (Applicant): It's important to know, as I said before, there was no refusal to see a client.
AP3 (Applicant): In fact, there was no client.
AP3 (Applicant): And he was prevented from returning to couple counseling, which he'd successfully worked in, and which there'd been no discrimination issues.
AP3 (Applicant): His inner forum, we submit, within the first sentence of Article 9 was violated.
AP3 (Applicant): This line of inquiry is wholly intrusive and was disapproved in Smith and Grady in the United Kingdom.
AP3 (Applicant): Moral integrity is a component part of both Articles 8 and 9.
AP3 (Applicant): Mr. McFarland worked for a private employer.
AP3 (Applicant): He did not provide any statutory service.
AP3 (Applicant): His employer simply introduced a non-discrimination policy and became judge and jury in its own application.
AP3 (Applicant): There is no name where this will end as society moves in a more secular direction.
AP3 (Applicant): The implications in these two cases go far beyond these two individuals.
AP3 (Applicant): In the United Kingdom, religious people who have followed their conviction in the workplace in the face of overtly vague non-discrimination laws have been sacked, demoted, or disciplined.
AP3 (Applicant): Among them have been lawyers, have been doctors, magistrate, teachers, foster parents, therapists, and many others.
AP3 (Applicant): In my respectful submission, the situation of religious liberty in the United Kingdom is now critical.
AP3 (Applicant): In all four cases, the sincerely held beliefs of the applicants could have been accommodated.
AP3 (Applicant): All the applicants wanted to do was follow their faith quietly, and they neither imposed their views or faith on any third party.