Dr Erica Howard is reader in law at Middlesex University and the author of Law and the Wearing of Religious Symbols: European Bans on the Wearing of Religious Symbols in Education (Routledge, 2012).
Recently the wearing of the niqab, the face-covering veil worn by some Muslim women, has been in the news again after the judgment on the wearing of the niqab by a defendant in criminal proceedings (R v D(R), 16/09/2013, judgment H.H. Judge Peter Murphy). In this case, Judge Murphy applied Article 9 of the European Convention on Human Rights 1950 (ECHR). He accepted, following the case law of the European Court of Human rights (ECtHR) on Article 9 ECHR (see, for example, Eweida and Others v the UK; Dahlab v Switzerland and Sahin v Turkey), that the wearing of the niqab was a manifestation of the defendant’s religion and that her right to manifest her religion had been interfered with. He then examined whether the restriction was justified under Article 9(2) using a proportionality test, balancing D’s right to manifest her religion against the interests of justice in conducting a fair trial for everyone involved.
So Murphy followed the approach of the ECtHR. But will the ECtHR do the same in the case of S.A.S. v France, which challenges the French legislation prohibiting the wearing of face-covering clothing in all public spaces? The case was heard by the Grand Chamber on 27 November 2013, after the Chamber, in May 2013, relinquished jurisdiction to the Grand Chamber (for a summary of this hearing see here). It is, at present, not known when the judgment in this case will be published.
S.A.S., a devout Muslim who wears the niqab in accordance with her religious faith, culture and personal convictions, was fined for wearing the face covering veil in public and claims a violation of a number of her rights under the ECHR, including her right to manifest her religion under Article 9. As, in my view, Article 9 is the most important and relevant for this case, I will only discuss this article here. Read the rest of this entry…