For many years France has been renowned for its strict adherence to a secular approach in public services. Known as laïcité, it is an ideology which, for many, goes some way to defining what it means to be a modern French person. The approach follows the formal separation of church and state in 1905. There are no hymns or religious assemblies in schools and absolutely no chance of a nativity play at this time of year.
In 2004 the principle of secularism was challenged when thousands of French women and schoolchildren took to the streets to protest their right to wear headscarves in schools. There were technical rules which ought to have allowed Muslim women to wear headscarves in government run establishments such as schools but attempts to do so frequently led to local protests and bans. In February 2004 President Chirac introduced legislation to ban the wearing of all “ostensible religious insignia” in state schools. The legislation was passed easily, by 494 votes to 36.
Fast forward to 2015 and the same issue has been before the European Court of Human Rights in a case which, remarkably, stems from the non-renewal of a fixed term contract in 2000. In Ebrahimian v France, Ms Ebrahimian is a French national who was born in 1951. She was employed on a fixed term contract as a social worker in the psychiatric department of Nanterre Hospital and Social Care Centre. Her contract ran from 1 October to 31 December 1999. On its expiry the contract was extended by one year to 31 December 2000.
On 11 December 2000 Ms Ebrahimian was informed by HR that her contract would not be renewed because she would not remove her headgear when working and following complaints from patients. In a letter sent by the Director of HR she was reminded of a Government declaration that “while the freedom of conscience of public officials was guaranteed, the principle of the secular character of the State prevented them from enjoying the right to manifest their religious beliefs while discharging their functions; accordingly, wearing a visible symbol of religious affiliation constituted a breach of a public official’s duties”.
Ms Ebrahimian applied to the Paris Administrative Court, as a result of which she was put forward as a candidate for the post of social assistant. However she did not participate in the recruitment process. In October 2002 the Court found that the decision not to renew the contract was in accordance with the principles of secularism and neutrality of public services.
In a further judgment delivered in February 2004 the Administrative Court found that there had been procedural errors. However in May 2005 the decision not to renew the contract was again confirmed. An application to the Versailles Administrative Court to set aside the decision was unsuccessful, as was an appeal to the Administrative Court of Appeal.
Ms Ebrahimian appealed to the European Court of Human Rights in October 2011. In its judgment, issued on 26 November 2015, the ECHR noted that the reason for non-renewal of the contract was her refusal to remove her veil, which was an expression of her affiliation to the Muslim faith. This had to be regarded as interference with her right to manifest her religion, contrary to Article 9 of the European Convention on Human Rights.
However, that interference was pursuant to French law which pursued the legitimate aim of protecting the rights and freedom of others. As to whether it was necessary, the requirement of neutrality of public officials could be regarded as justified in principle. As for proportionality, the restriction derived from the principle of the secular nature of the State, and that of neutrality of public services, both being principles which the Court had approved.
It was not the function of the Court to rule on the French model of state secularism. However, the administrative courts should ensure that authorities did not disproportionately interfere with the freedom of conscience of public officials where State neutrality was involved. In the specific circumstances of Ms Ebrahimian’s case the Court concluded as follows (as summarised in the official press release):
With regard to Ms Ebrahimian, for whom it was important to visibly manifest her religion, she had
exposed herself to the serious consequence of disciplinary proceedings. However, following the
opinion of 3 May 2000 she had been aware that she had to observe a neutral dress code in
discharging her functions. Owing to her refusal to comply with that obligation, and irrespective of
her professional qualities, disciplinary proceedings had been instituted against her. She had then had
the benefit of the safeguards relating to disciplinary proceedings and remedies before the
administrative courts. She had also chosen not to sit the competition to recruit social assistants
organised by the HSCC. In those circumstances the Court held that the national authorities had not
exceeded their margin of appreciation in finding that there was no possibility of reconciling
Ms Ebrahimian’s religious convictions with the obligation to refrain from manifesting them, and in
deciding to give precedence to the requirement of neutrality and impartiality of the State.
The Court concluded that the interference with the exercise of her freedom to manifest her religion was necessary in a democratic society so there was no breach of Article 9 of the Convention (right to freedom of thought, conscience and religion).
Although the judgment places great emphasis on the protection of a secular state under French law, the general principle that protection of the religious rights of one against the rights of others not to be exposed to the manifestation of religious belief, at least on the part of government employees, is one which is likely to be relied on heavily. I have commented on many occasions that courts have allowed themselves to be drawn into almost impossible positions by attempting to rule on to what extent religious and political beliefs are protected and, in cases of conflict between church and state, who should win.
The judgment also provides a powerful riposte to those who maintain that the ECHR is stacked in favour of the rights of the individual to the extent of eroding the powers of the State.