French burqa ban upheld: a victory for democracy and a setback for human rights

This post was written by Frederick Cowell, a lecturer in Birkbeck’s School of Law. It was originally published on The Conversation.

The European Court of Human Rights has upheld a French ban on the wearing of face veils in public. The French Senate voted on the ban in 2010 and people who wear the burqa or niqab in public risk being fined. The anonymous woman who appealed the ban argued she was making a free choice to wear the burqa, and that the law banning it infringed her right to privacy and her right to freedom of religion, under Articles 8 and 9 of the European Convention on Human Rights (ECHR).

The Court’s judgement held that whilst there had been an interference with her rights under Articles 8 and 9, this limitation of rights was necessary to protect the “rights and freedoms of others”.

Ultimately, the court sympathised with the French government’s position that seeing a person’s face whilst walking along the street was an essential part of “living together” in society.

A step too far

The court had previously ruled that the Turkish ban on the hijab in universities was not a violation of Article 9, reasoning that it was necessary to protect against extremist movements and promote secular education. The UK House of Lords followed this decision when a pupil at Denbeigh High School was expelled from school after she broke school uniform policy by wearing a jilbab, rather than the uniform-mandated hijab.

In 2009 the European Court held that the display of the cross in Italian classrooms violated a child’s right to a secular education. This decision caused a political uproar in Italy, where all school classrooms had been displaying the cross for decades, and the decision was later overturned in the Grand Chamber (the European Court’s appeals body).

There, it was held that the display of the cross was allowed in classrooms as it was an essentially passive symbol. This has led some commentators to surmise that the Court has a mildly secular leaning.

But the French ban goes much further than any of the above cases. It applies to any public space, not just an institution such as a school or university where there may be good educational reasons to limit religious freedom.

The European Court of Human Rights knows best?

Where the judgement is particularly problematic is in its treatment of the margin of appreciation doctrine, which holds that the court will not interfere where the state party is “best placed” to determine the appropriate limits of a particular right.

For example, if one country that is signed up to the court has lax laws on pornography and another country imposes tighter censorship, both laws can still be compatible with the protection of free speech provisions in the ECHR. However this is not a blank cheque; states have to show that any restrictions on rights are necessary for their society, and the court has frequently held that restrictions of rights in some countries go well beyond the margin of appreciation.

In the burqa ban judgement, the court held that the ban was within France’s margin of appreciation as it “constituted a choice of society”. It further stated that the democratic nature of the decision meant that different social interests had been correctly balanced. This in essence condoned the idea that a majority can legitimately remove minority rights under the aegis of democratic decision making.

This raises further questions about the relationship between democratic decisions and the protection of rights. In 2005, the court ruled that the UK’s blanket ban on prisoner voting was a violation of the right to participate in elections. But in 2011, the British Parliament voted by an overwhelming majority to reject this ruling. In principle, if democratic decision-making is allowed to restrict one minority’s rights, there’s no reason it can’t restrict another’s.

“Living together”

In the burqua ban case, the court argued that the objective behind the ban – the promotion of “living together” – was a legitimate social aim. This is weak reasoning. The court has rejected many other cases involving seemingly nebulous social aims. For example it has consistently ignored claims from states that laws limiting the rights of the LGBT community are representative of the morals of society.

This case is symptomatic of a deeper problem with the court. When it was set up in 1950, it was designed to safeguard democracy against the external threats of totalitarian fascism and communism; the political consensus behind the court’s continued operation is based on the narrative of protecting democracy. This makes it politically difficult for the court to rule against states when they make democratic decisions restricting rights.

To make matters worse, along with other European institutions, the court is now the target of popular political rage and many Eurosceptics deride it as anti-democratic.

Upholding the burqa ban was a weak legal decision, but it will prevent a row between the court and the French government. After it’s row with the UK government over prisoner voting this may be a blessing in disguise.

The Conversation

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I don’t feel like dancin’

This post was written by Professor Lynne Segal, Anniversary Professor of Psychology & Gender Studies in Birkbeck’s Department of Psychosocial Studies.

‘Margaret Thatcher is Dead: This lady is not returning!’ is one way of the calmer statements celebrating Thatcher’s demise on my Facebook page. I can’t join the clamour singing ‘Ding dong the witch is dead’, trailing as it does its horrific historical sexism. More sadly, I can’t see anything to celebrate. Whilst this once formidable Tory trailblazer is dead, her ideas are more resurgent than ever. Neither Cameron nor Osborne will ever be damned as a warlocks or necromancers – this rarely happens to men – yet it is thanks to them that Margaret Thatcher dies triumphant. Thatcher’s success, like that of her pal, Ronald Reagan, was that through a combination of shrewdness and luck she could ride the high tide of corporate capital’s determination to increase profits by rolling back all the popular gains of the postwar settlement. She was neoliberalism’s willing tool, rather than something unique, evil or otherwise.

What is truly extraordinary about these times is that while Thatcher’s economic legacy has imploded, her ideological stance – which as she said was always her main agenda – is more viciously enforced than ever. “Markets know better than governments”, was her pivotal mantra, the rest flowed from this. Oh no they do not! You would think we must all have learned this from the catastrophic economic collapse in 2008, when so many banks had to be bailed out by governments, only to be returned as quickly as possible: old bonuses intact; new regulations nonexistent. All too quickly forgotten is the revelation of the cruel absurdity of the economic collapse set in motion by the buccaneers of the finance sector that Thatcher had ‘liberated’ in October 1986, with all the reckless gambling and belief that ‘toxic debt’ was itself a tradable commodity. Or at least, any such knowledge is drowned out by the continued combination of Coalition rhetoric baiting Gordon Brown and the Labour Party, together with relentless media attacks on the ‘undeserving’ poor, or any other scapegoats conjured up to misdirect people’s sense of resentment, fear and insecurity: ‘Crisis: Blame the baby boomers, not the bankers’, was a typically absurd headline in The Times when Irish Banks banks were on the point of collapse at the start of 2010, summarizing the argument by their chief economic analyst, Anatole Kaletsky.

In these topsy-turvy times, any thoughtful, reforming responses to the crisis, no matter how carefully argued and widely supported by fellow economists – such as those put forward by the highly respected American economist, Paul Klugman – are tossed aside in the UK. No reference to Keynesianism or any policies for decreasing the obscene inequality that helped generate the crisis are considered. Instead, after so much mayhem, Thatcher’s worship of market values rules supreme, motivating vicious cuts in welfare and the surreptitious turning over of what remains of the public sector to the private, even as the crisis in market forces and the finance sector continues to deepen, especially in Europe.

Of course there have been impressive flurries of resistance, and for a while in the wake of the Occupy movement, grass-roots dissent was back on the political agenda. Networks of resistance are active around the country, especially in defence of the NHS. Yet those eager to dance on Thatcher’s grave have much thinking to do, when there remains such a lack of connection between protesters and mainstream politics. Indeed, as Paul Mason admits in his book celebrating all the new protest movements around the globe, Why It’s Kicking Off Everywhere, most of the people he interviewed ‘were hostile to the very idea of a unifying theory’. Yet it is surely some sort of compelling counter-ideology and alternative strategy to the ubiquitous rule of market forces that we are desperately in need of if we are ever to safely bury Thatcher. Although the rich few get richer and the rest of us poorer, the left has yet to strike any real chord with the broader public. We know that it was Tony Blair, or ‘Blairism’, which – as Thatcher knew – did so much to entrench her legacy: with his seamless endorsement of market values and public veneration for wealth and celebrity, even as it furthered cynicism about politicians and politics generally. We have headed so far down that stream, it is hard now to turn things around.

It took the extraordinary conditions of the Second World War to create the Labour Party’s comprehensive commitment to welfare, albeit of a conservative and authoritarian kind. The reforms and nationalizations inaugurating the British welfare state, post 1945, were based on the deliberate spread of a consensus that it was economic insecurities and domestic unhappiness that created unhappy societies: ‘many of the maladjustments and neuroses of modern society’, as Bevan explained when Minister of Health, arose directly from poverty and insecurity. When will our politicians say these words again? Any direct action, movement politics or coalitions of resistance we build today has to find ways to influence national government to reaffirm that mind-set, hopefully with more creative agendas than hitherto, before we can bury Thatcher. And since I began with a feminist note, let me also end there. Some women have argued that it was Thatcher who provided the best role model for helping women release their true potential. No she did not. She was the perfect role model for the ever deepening gulf between women, as the privileged few have been able to rise to the very heights of political or corporate power, even as the majority of women, affected at every turn by the rolling back of welfare and the politics of individual success she promoted, are ever more firmly left at the bottom of the heap.

Lynne Segal’s new book Out of Time: The Pleasures and Perils of Ageing will be published by Verso in the Autumn.

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