EU Guidelines on Freedom of Religion and Beliefs: Securing a secular and balanced approach

On 24 June 2013, the Council of Foreign Affairs Ministers of the EU adopted in Luxembourg the EU Guidelines on the promotion and protection of freedom of religion or belief.

Whilst proclaiming EU’s impartiality towards religion or belief, these Guidelines aim at helping the EU to promote freedom of religion and belief in third countries and address violations of this right abroad in a coherent and effective manner.

The EHF was closely involved in their elaboration and was consulted several times by the European External Action Service in the drafting process. We ensured that the Guidelines had a secular and balanced approach.

During the elaboration process, we highlightened the following points:

• that states should adopt a neutral position towards religions and beliefs – secularism in the sense that is increasingly mandated in judgements of the ECtHR;
• that all references to freedom of religion or belief should use that phrase in full.  It should not be abbreviated to “freedom of religion” but could be abbreviated to “freedom of belief” as that is an inclusive word.  The beliefs covered by FoRB should be conceptualised as “collective beliefs that attain a sufficient level of cogency, seriousness, cohesion and importance and that relate the nature of life and the world to morality, values and/or the way their believers should live”  (this draws on work I did for the BHA);
• that the guidelines should be explicit that they cover:
  • atheism and agnosticism and all forms of non-religious belief and the freedom to have no belief – to be ‘unconcerned’
  • freedom to change belief
  • freedom to criticise and deny other beliefs, even if this is found offensive by others, so long as it does not amount to incitement to violence or other unlawful behaviour (unlawful discrimination, persecution, individual harassment . . .?);
• that freedom to manifest religion or belief can clash with other rights: in practice compromises may be necessary and freedom of religion or belief does not always trump other human rights;
• that respect is appropriate for people’s right to hold whatever beliefs they wish and (subject to the stated conditions) to manifest them: there is no requirement to respect the people themselves (whom one may consider misguided), let alone their beliefs (which one may consider stupid or even despicable);
• that religious bodies – churches etc – should properly be treated in law like any other civil society organisation, not given special treatment, whether in the form of privileges or restrictions (such as a requirement to register or at least to meet certain standards in order to register and gain legal personality);
• that the emerging rights of the child (vis a vis his/her parents/guardians)  should be recognised, as in Article 14 of the Convention on the Rights of the Child;
• that that the state may provide education about religion or belief so long as it conforms to the OSCE Toledo principles, although even so some provision may need to be made for opting out; there is no obligation on the state to provide finance to enable parents to educate their children in their own religion or belief (but if they do, then as stated they must do it on a non-discriminatory basis).

Conservative lobbying at the European Parliament

The initial proposal presented by the European Commission to the European Parliament (EP) achieved a good balance between the need to defend freedom of religion and beliefs and the need to defend other fundamental rights (e.g. freedom of expression and equality). Nonetheless, the report presented by the rapporteur MEP  Laima Andrikiené (EPP) to the whole European Parliament on 29 May 2013 was very conservative and had a clear religious tone.

The EHF therefore contacted Members of the European Parliament to get conservative amendements rejected during the final adoption. More specifically, we raised MEP’s attention on :

Education

The report mentioned that:  “(f) the liberty of parents and guardians to ensure religious and moral education cannot be restricted.” And that “(j) the rights of parents to educate their children according to their religious or non-religious convictions includes their right to deny any undue interference by state or non-state actors in their education opposed to their religious or non-religious convictions”.

This paragraph ignored the emerging autonomy of the child (Art. 14 of the UN Convention on the Rights of the Child), his/her right to receive pluralistic ideas and information (Art. 13 CRC) and it could have allowed some parents to refuse science, sport or sexuality classes for their children in the name of their religious beliefs. It could also have been used to bar any objective, fact-based education about religion.

Conscientious objection

The report mentioned that: “(d) […] including the right to conscientious objection” and “(l) the Guidelines should also include the right to well-defined conscientious objection as a legitimate exercise of the right to freedom of thought, conscience and religion in relation to other morally sensitive matters.”

This paragraph was highly dangerous since the right to conscientious objection was not limited at all here. One of the direct consequences could have been a restricted access to health and reproductive services like contraception and abortion.

The final European Parliament’s recommendation on these Guidelines (adopted 13 June 2013) rejected the paragraph on conscientious objection, thanks to a mobilisation of progressive MEP, but kept the part on education intact. The EHF therefore contacted several national delegations to the Council to explain the potential consequences of a unrestricted liberty of parents to educate their children according to their religious and non-religious beliefs.

A progressive and balanced final text

Fortunately, the Council finally rejected this conservative part and adopted a well-balanced text:

The rights of people holding non-theistic and atheistic beliefs will be equally protected by the EU as well as the right to change or abandon one’s religion or belief.

The EU will also oppose any religious justification to restrictions on other fundamental rights and to violence against women, children, members of religious minorities and persons on the basis of their sexual orientation and gender identity.

On the right to conscientious objection, the EHF was satisfied that the EU chose to restrict it to military service and did not extend it to health services like abortion or contraception.

Regarding freedom of expression, the EU reaffirms the right to criticize or mock religion or belief, while promoting respect and tolerance. The EU thus commits to protect individuals’ rights and not religion or belief as such. This implies that the EU will explicitly recommend the decriminalization of blasphemy offences in third countries.

However, the EHF regreted that the EU did not recommend it within its own borders. Blasphemy laws are still in place in a minority of EU Member States and ‘religious insult’ is still an offence in a large number of Member States.