ECJ Judges: Undemocratic when we don't like what they say!

Anti-EU sentiment traditionally comes from the political left in Denmark. While the nationalist Danish People's Party in recent years has been criticising the EU from a right-wing position, euro-scepticism has mostly been the preserve of Socialists and Social-Democrats.

Now the mood may be changing in Denmark, after the European Court of Justice (ECJ) ruling on Friday in the C-127/08 Metock and Others case, on the right of residence for non-EU spouses of EU citizens living and working in other EU countries. For an overview see these articles from EU Observer, Jyllands-Posten, and DR. In the DR article Integration Minister, Birthe Rønn Hornbech, severely criticises the ECJ's judgment and calls it a 'democratic problem.' Criticising judges over decision they don't like is, of course, a favourite pastime of politicians, but the anger in the Conservative-Liberal camp over the ECJ is nonetheless interesting.

What follows is my analysis of the ECJ's judgment.

The free movement of workers is one of the fundamental doctrines of the EC Treaty and EU law. Not only is this stated in Articles 18 and 39 of the Treaty, but Directive 2004/38 (adopted by the European Parliament and Council on 29 April 2004) has purposefully strengthened the right of free movement and residence of Union citizens, a fact duly noted by the ECJ.

Directive 2004/38 states, in Article 7(1), that "All Union citizens shall have the right of residence on the territory of another Member State... if they: (a) are workers or self-employed person in the host Member State..." Article 7(2) extends this right to "family members who are not nationals of a Member States..."

As I read the ECJ's judgment, the issues before the court therefore were, 1) whether the EC legislature (the Council and Parliament) had competence to regulate the entry and residence of non-EU citizens who are family members of a Union citizen exercising his or her right to freedom of movement, and 2) whether the directive prohibited Member States from excluding the right of residence for family members in Article 7 to non-EU citizens who had not previously been lawfully resident in another Member State.

The court answered both of these questions in the affirmative. First, because Articles 18, 40, 44 and 52 of the EC Treaty clearly gives the EC legislature that competence, and secondly, because the exercise of the freedoms guaranteed by the Treaty would be seriously obstructed, if Union citizens were not allowed to lead normal family life in a host Member State (see paragraphs 61-62).

Final comments on the recent Employment Tribunal case.

When Christian Registrar, Ms Ladele, two weeks ago won her employment tribunal case for discrimination and harassment, she hailed it as a victory for religious liberty, as did the conservative Christian Institute which financed her legal costs. Whether the decision is a victory for religious freedom is, of course, open to debate. Just as interesting as the question of freedom on religion in the workplace, is in my opinion he legislative basis for the decision.

While the Tribunal did refer to the right to freedom of religion in Article 9 of the European Convention on Human Rights, the case law on Article 9 does not give much support to Ms Ladele's case. Instead the tribunal's finding of discrimination and harassment was based on the Employment Equality (Religion or Belief) Regulations 2003, and the tribunal only used the jurisprudence of the European Court of Human Rights as guidance in how to balance conflicting rights.

The 2003 regulations were introduced in Britain in 2003 to ensure compliance with EU Directive 2000/78/EC. This directive obliges member states to implement legislation that prohibits discrimination in the context of employment on grounds of religion or belief, disability, age or sexual orientation.(1) Prior to the introduction of the 2003 regulations, the only available protection in English law against discrimination on the grounds of Religion was found in race discrimination legislation.(2) Legal protection in England for religion in the workplace therefore derives from EU law, a fact hardly any news media has mentioned.

Also of interest is the fact that in 2000 the Christian Institute published a pamphlet entitled 'Ditch the Directive', arguing against the implementation Directive 2000/78/EC. The pamphlet argued, inter alia, that the protection against discrimination on grounds of sexual orientation would be in conflict with protection against discrimination on grounds of religion, as well as Article 9 of the European Convention. The concerns of the Christian Institute included a suggestion that a Roman Catholic school would be acting unlawfully under the directive, if it "refused to employ non Roman Catholics, neo Nazis, atheists, communists, Seventh Day Adventists or practising homosexuals"(3)

This argumentation is, in my opinion, somewhat exaggerated, as the directive contains wide exceptions for religion.(4) It does tickle me, however, to see Adventists mentioned with neo Nazis, atheists, communists and homosexuals, in a list semingly meant to frighten British christians.


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(1) Note that the Employment Equality (Sexual Orientation) Regulations 2003 and 2007 also derive from Directive 2000/78/EC

(2) Lucy Vickers, Religious Freedom, Religious Discrimination and the Workplace (Oxford, Hart Publishing, 2008) p.121.

(3) Robin Allen and Rachel Crasnow, Employment Law and Human Rights (Oxford, Oxford University Press, 2002), p.152.

(4) Article 4(1) allows discrimination where religion is a 'genuine and determining occupational requirement', and Article 4(2) allows similar exceptions for organisations that are based on a religious ethos.

More on the Employment Tribunal.

The commentaries on the Central London Employment Tribunal's decision that a Christian registrar had been discriminated against by Islington Council, has been depressing reading. Yesterday, The Observer, for example, published this editorial in which they confuse, in my opinion, the issues. I have already criticised the decision of the tribunal, because it failed to consider fully the rights of the Council as an employer, but on the evidence and arguments presented before it, the tribunal made some good points.

The tribunal only found in favour of the registrar because the Council offered no other reason for their actions than the need to protect the rights of the lesbian, gay, bisexual and transsexual (LGBT) community, and this community's rights were held not to have been impeded by Ms Ladale being excused from performing civil partnership ceremonies. In paragraph 87 of the judgment, the tribunal states: " We heard evidence that there was no dimution in service offered by reason of Ms Ladele not being undertaking civil partnership duties." This statement indicates that had the service offered by the Council in any way been limited by an accommodation to Ms Ladele's convictions, then the tribunal would not have upheld the her right not to be discriminated against on grounds of religion.

Also, this case was, as all cases are, decided on its specific facts. Ms Ladale had been a registrar since 1992, and until 2007 had been an office holder, and not and employee of the Council. In December 2007, when her status was changed due to the provisions of the Statistics and Registration Act 2007, the Council implemented a policy requiring Ms Ladale to perform civil partnerships ceremonies. It is likely that the tribunal would have looked differently on the Council's policy, if Ms Ladale had not been a registrar prior to 2007 and had always been an employee of the Council. This tribunal's decision should therefore not be seen as supporting a general the right of employees to refuse the performance of tasks on the basis of conscience and belief.

I wish those commenting on the case would not draw exaggerated conclusions. This case is significant, not because it involves the civil rights of the LGBT community, but because it shows that employment tribunals will not accept discrimination that is only justified in the abstract and not in fact.

Comment on Employment Tribunal Decision.

The decision yesterday by an English employment tribunal that a registrar, Ms. Ladelle, had been been subject to direct and indirct discrimination and harassment on grounds of religion has, predictably, lead to much commentary. Some hail the decision and others fiercely criticise it. An example of the latter can be found today on The Guardians 'Comment-Is-Free' section, where the president of the president of the National Secular Society has contributed this commentary on the case. Sanderson, as well as the tribunal, confuses, in my opinion, the competing rights in this case.

In its decision,(1) the tribunal stated, inter alia: "This is a case where there is a direct conflict between the legislative protection afforded to religion or belief and the legislative protection afforded to sexual orientation."(2) The rights in conflict were found in Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation) 2003 and the European Convention on Human Rights, and the tribunal emphasized that "one set of rights cannot override the other set of rights."(3) In finding that the Islington Council had indirectly discriminated against the registrar, the tribunal held that Council "placed a greater value on the rights of the lesbian, gay, bisexual and transsexual community than it placed on the rights of Ms Ladele as one holding an orthodox Christian belief. "(4)

In applying 2003 Religion or Belief Regulations, the tribunal first considered whether there had been discrimination on grounds of religion and secondly, whether such discrimination was justified. The tribunal's finding of discrimination is not controversial, but its analyses of whether the actions of the council were justified is more problematic.

In considering whether the actions of the Council were proportional to a legitimate aim, the tribunal balanced the rights of Ms Ladele against the rights of the homosexual community. The Council's actions were held not to be justified because the council did not show that the rights of the homosexual community would be undermined if the council allowed Ms Ladele to be excused from performing civil partnership ceremonies. The ability of the Council to perform its statutory duties to register civil partnerships were found not to be diminished.(5)

However, the rights of the registrar should, in my opinion, not only have been balanced against the rights of the homosexual community, but also against the right of the Council as an employer to organise and direct the work of the registrars, and to do so efficiently. Also the rights of other registrars and employees should have been taken into consideration.

I therefore do not consider this decision to be particularly well reasoned and its importance should not be exaggerated. Decisions by employment tribunals do not create legal precedent and this decision does not, in my opinion, add clarity as to how the test of proportionality under the 2003 regulations should be applied.


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(1) Ladele v. London Borough of Islington, Central London Employment Tribunal, case number 2203694/2007. The decision can be downloaded from the Christian Institute's website here.
(2) Ibid. paragraph 50.
(3) Ibid.
(4) Ibid. paragraph 87.
(5) Ibid.

Employment Tribunal Finds Discrimination on Grounds of Belief.

Its kind of ironic that on the day I decide to write a comment on the relationship between religious freedom and discriminination of other groups, that an employment tribunal rules that a registrar, who refused to conduct same-sex civil partnership ceremonies, was discriminated against on grounds of religious beliefs. For more see this BBC article.

The decision is somewhat surprising, but it would be premature to comment on it before reading the judgment, which can be downloaded here, in full.

Adventist and Discrimination.

I was quite disappointed when the President of the British Union Conference of Seventh-day Adventist, Don Macfarlane, last year publicly spoke out against the Equality Act (Sexual Orientation) Regulations 2007.(1) For me it was hard to understand that an Adventist would openly advocate for the right to discriminate against homosexuals in the provisions of goods or services. Macfarlane essentially argued that it was right for individuals to be prevented from buying and selling goods and services on the basis of their lifestyle.

Macfarlane's statement, and those of other Christians, left me wondering what right do Christians have to claim legal protection from discrimination, when we ourselves want to maintain the right to discriminate?

Dr. Lucy Vickers, Law Professor at Oxford Brooks University, in a article on the Employment Equality (Religion or Belief) Regulations 2003, makes the following point:

"... it should not be forgotten that discrimination on religious grounds is not only something encountered by religious people, but also something practiced by them. Religious groups are often as keen to retain the right to discriminate against others as they are to protect themselves from discrimination by others."(2)

It is because of this desire, or need, to discriminate, that both the 2003 and 2007 regulations contain exceptions allowing certain forms of discrimination by religious or other groups. (See regulation 7 of the 2003 Regulations and regulation 14 of the 2007 Regulations.)

Adventist have for a long time argued for the legal protection of religious freedom, as evidence by the North American Religious Liberty Association (NARLA) and the International Religious Liberty Association. NARLA has, for example, advocated for the passing of the Workplace Religious Freedom Act. That is why I found Macfarlane's argumentation disappointing. Except for the reasonable exceptions when a particular religion or status is "a genuine and determining occupational requirement,"(3) surely religious freedom is best promoted by non-discrimination, in employment and in the provision of goods and services, of all groups and of all manifestations of belief or lifestyle. Adventist opposition to the 2007 regulations was therefore, in my opinion, misguided and counterproductive.

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(1) Macfarlane's letter to the Prime Minister, published in the 16 February 2007 issue of the Adventist magazine Messenger, can be downloaded here.

(2) Vickers, Lucy, 'Freedom of Religion and the Workplace: The Draft Employment Equality (Religion or Beleif) Regulations 2003,' 32 Industrial Law Journal (2003) pp.23-36, at p.26.

(3) Regulation 7(2)&(3) Employment Equality (Religion or Belief) Regulations 2003.

Moralising Judges.

In connection with my dissertation I've been studying the case of Arrowsmith v. United Kingdom (1) in the European Court of Human Rights. This case is important primarily because of the Court's finding on what constitutes 'manifestation of religion' under Article 9 of the European Convention of Human Rights. What struck me when reading the case was, however, the attitudes of the judges, in particularly the attitude of Lord Justice Lawton in the the UK Court of Appeal.

In this case the applicant, Arrowsmith, had been convicted under sections 1 and 2 of the Disaffection Act of 1934, for encouraging British soldiers, required to serve in Northern Ireland, to desert or refuse service. The applicant had distributed a leaflet to soldiers with information of the options and consequences of going AWOL or getting discharged from the military. The applicant was sentences to 18 month's imprisonment. On a appeal to Court of Appeal, Lawton LJ made this remarkable statement concerning the leaflet in question:

This leaflet is the clearest incitement to mutiny and to desertion. As such, it is a most mischievous document. It is not only mischievous but it is wicked. This court is not concerned in any way with the political background against which this leaflet was distributed. What it is concerned with is the likely effects on young soldiers aged 18, 19 or 20, some of whom may be immature emotionally and of limited political understanding. It is particularly concerned about young soldiers who either come from Ireland or who have family connections with Ireland: there are probably a large number of them in the British Army. These young soldiers are encouraged to desert on learning of a posting to Northern Ireland and to mutiny. If they mutiny, they are liable to be sentenced by court martial to a very long term of imprisonment, and if they desert, they must expect to get a sentence of at least 12 months' detention. For mature women like this defendant to go round military establishments distributing leaflets of this kind amounts to a bad case of seducing soldiers from both their duty and allegiance.(2)

When Lawton LJ states that soldiers aged 18-20 may be "immature emotionally" or of "limited political understanding", he is basically saying that persons aged 18-20 may be incapable of making mature decisions concerning their futures and incapable of making decisions based on conscience. That is why the Arrowsmith's leaflet is not only "mischievous" but also "wicked".

Lawton LJ may very well believe that it is wicked to "seduce" soldiers from their "duty and allegiance", but to argue that the wickedness derives from the immaturity of the soldiers really is a remarkable. If Arrowsmith's leaflet is wicked on this basis, what then can be said of the British government, who, according to Lawton LJ, recruits into the military individuals that are emotionally immature and incapable of understanding the consequences of their actions, and asking of them that they fight wars and put themselves in harms way?

(1) Application No. 7050/1975, 16 May 1976.
(2) R v Arrowsmith [1975] Q.B. 678, per Lawton LJ at 684.