The 23rd Annual Congress of the European Consortium for Church and State Research took place between 29 September and 2 October at St Stephen's House, Oxford. This was the first time the congress had been held in England, and it was blessed with unseasonably sunny weather in the Autumn heat wave. The conference chairman was Professor Mark Hill QC, who acknowledged generous financial support from, among others, the Ecclesiastical Law Society.

Sir Nicolas Bratza, the United Kingdom Judge at the European Court of Human Rights and its President-Elect, opened the gathering with a public lecture on Article 9 of the European Convention on Human Rights. Sir Nicolas offered an overview of various judgments of the European Court of Human Rights (ECtHR) in the area of religious freedom, commenting in greater detailed on several. The lecture and the discussion touched upon the recent Lautsi case (on the crucifix in Italian schools), where the Grand Chamber had overturned the earlier decision of the Chamber. He spoke with sensitivity about the balancing of competing human rights and introduced the audience to several upcoming Article 9 cases from the United Kingdom, falling short of predicting their likely outcome.

The proceedings of the congress were divided into three sessions. Each of them consisted of an introductory lecture given by a member of the Consortium, followed by a plenary discussion. Professor Linda Woodhead, Professor of Sociology of Religion at Lancaster University, underlined close links between law and sociology. She presented briefly some of the projects carried out within its Religion and Society Programme, which had generously co-funded the Congress.

The first session, devoted to the historical, cultural and social background of non-discrimination law in Europe, was preceded by a presentation from Professor Lisbet Christoffersen (University of Roskilde, Denmark), who noted that there are three main actors involved: the individual believer, a church or religious community and the state. She pointed out that discussion concerning non-discrimination refers mainly to issues connected with the workplace. Despite the unifying force of the EU, member states have divergent national histories. Professor Christoffersen underlined the phenomenon that, in countries where one religion predominates, individuals feel able to discriminate against believers of other faiths.

Professor David McClean was surprised by the approach of national rapporteurs towards history: in some papers the history section started in the Middle Ages, while other authors described only the last decade. He also referred to the very limited influence of United Nations documents and covenants on the national (and in particular the constitutional) laws of member states. Professor Silvio Ferrari noted that, after the First World War, the main aspect of concern was the collective (communitarian) dimension of human rights, understood as the protection of whole groups. This changed after the Second World War, when the protection of individuals (the right to believe and to change belief) came into the ascendant. He observed that this second phase, based mainly on a Christian understanding of the world, seems to be out-dated and that the protection of groups has again become crucial. Professor Francesco Margiotta Broglio stressed that in almost all states there is a dominating church/religious community with a number of smaller ones, whereas Germany is one of those rare cases where catholic and protestant churches co-exist with neither dominating. Professor Woodhead noted the significance of religious discrimination when many people regard their religious identity as stronger than their national identity.

The second session concerned the duty not to discriminate. Mr Lars Friedner of Sweden offered an overview of the jurisprudence in almost all member states, drawing upon the national reports circulated in advance of the congress.Footnote ² Interestingly, in similar cases the courts of various member states arrived at different conclusions. The discussants wondered whether financial considerations had a part to play: communities that are richer, or that pay more in taxes, are allowed to do more. Other participants had different impressions: that the state, and in particular the national courts, are stricter towards larger churches than towards small communities, which deserve more protection or even promotion. This provoked Professor Marco Ventura of the University of Siena, who was chairing the session, to ask a further question: do we protect something because of the past or do we protect something for the future? Finance is significant: if a religious community running a school accepts state funding, may it set its own rules concerning the admission of pupils? Is such a school allowed to discriminate? On a more practical level, Dr Wolfgang Wieshaider noted that, once a school run by a minority church/community has to admit children of different beliefs, it risks becoming a minority within its own institution. On the other hand, the European framework allows positive discrimination, as it is explicitly provided for in relation to teachers and police officers in Northern Ireland, and for Roma children in Romania. Professor Margiotta Broglio underlined that discrimination arises partly from juridic status: as none of the Islamic communities in Italy has legal personality, it cannot make demands of the state, for example the construction of a mosque. There is no uniformity of approach in relation to equality authorities in member states: the tasks and powers of such bodies differ significantly. In Germany, there is no such body at all, and the protection against discrimination is guaranteed by the ordinary state courts.

The third session, on the right to discriminate, opened with a paper by Professor Agustin Motilla (University Carlos III, Madrid) that focused on the exemptions provided in Article 4(2) of the EU Directive 2000/78 establishing a general framework for equal treatment in employment and occupation, which allows ‘churches and other public or private organisations the ethos of which is based on religion belief’ to employ personnel of a given denomination, if that person's religion or belief constitutes a genuine, legitimate and justified occupational requirement. He analysed the jurisprudence of the ECtHR, demonstrating that this issue has been of considerable importance for quite a long time. Professor Gerhard Robbers raised a question of semantics: whereas traditionally in English the notion ‘discriminate’ has a balanced, neutral meaning, in other languages it has negative connotations – something wrong and nasty. Other participants confirmed that this is also the case in their languages. Professor Robbers raised a second question: who is to decide what merits an exemption from a universal law; can a state court take such a decision? And if this decision is taken by religious courts, should it be acknowledged by the state, mindful of church autonomy? Finally, if teachers and doctors may be required to be members of a given denomination, but not cleaning staff or administrative personnel, does this not send the message that they and their work are unimportant?

The ECtHR has underlined in various cases that employees may secure their own religious freedom by resigning and finding alternative employment. Reference was made to the case of Rommelfanger, in which a German doctor was dismissed from a hospital after he made public statements in favour of abortion. There are recent similar cases (O v Germany) where the court has come to a different conclusion. With the current economic downturn this approach, sometimes styled the ‘specific situation rule’, becomes even less tenable.

Professor Norman Doe (University of Cardiff) sought to sum up the proceedings and to venture some conclusions. Despite the unifying force of the European Union, EU law and the Convention on Human Rights, the courts of member states continue to come to different conclusions in their judgments, owing to historic and other societal considerations. Further, whereas discrimination lies in the domain of private law, similar issues were discussed during the Consortium congress in Järvenpää from the standpoint of the criminal law.Footnote ³ The overlay of criminal and civil law is significant when it comes to equality and non-discrimination, as will be the ongoing dialogue between lawyers and sociologists.

The General Assembly of the Consortium elected Professor Mark Hill QC to be its President for 2012. The 24th Annual Congress will take place in Budapest, at the Pázmány Péter Catholic University, at the invitation of Professor Balázs Schanda.