Niqabs ban: fine ‘margin’

The hijab, a scarf that covers the head and neck while leaving the face entirely clear, is so widely worn in British towns and cities that it now goes largely unnoticed. But you don’t often see a Muslim woman who covers her entire face as well. There are two options: a burqa, the full-body covering which includes a mesh over the face, and more commonly the niqab, a veil that leaves only the eyes uncovered and which may be lifted when the wearer needs to eat or drink.

But anyone who wears a burqa or niqab on the streets of France risks breaking a law introduced in 2011 that bans the use of ‘clothing designed to conceal the face’. There are exceptions for health or occupational reasons and for sports, festivities or artistic and traditional events.

Presumably it would be fine to wear a crash helmet with visor, but only on a motorbike; and there would be no problem with a Santa Claus beard, but only at Christmas. The maximum penalty is €150 (£120) and/or attendance at a citizenship course. A similar law was introduced in Belgium at around the same time.

On the very day the law took effect in France, a 20-year-old French woman lodged a challenge to it at the European Court of Human Rights in the French city of Strasbourg. Perhaps fittingly for someone who wishes sometimes (though not always) to hide her face in public, the applicant — who feared recriminations — sought permission, successfully, to conceal her name.

Known in court by the initials SAS, she was born in Pakistan to Sunni Muslim parents. Some of her family live in Birmingham and she spent time doing work experience in the West Midlands. That was how she came to be represented by Sanjeev Sharma, a partner in the Birmingham solicitors firm JM Wilson. Sharma, in turn, briefed three members of the English bar for a hearing before the court’s grand chamber in November 2013.

In their judgment last week, the Strasbourg judges had no difficulty in dismissing as ‘manifestly ill-founded’ claims by SAS that the French ban amounted to degrading treatment and breached her right to freedom of association. But they also dismissed preliminary objections by France that she had lodged her application before she had even been affected by the new law, let alone before she had exhausted her remedies in the French courts.

Her main argument was that the ban breached her right to respect for private and family life under article 8 of the human rights convention and the right to manifest her religion under article 9. Those claims were accepted by the grand chamber. But the French government had argued that her rights under articles 8 and 9 were outweighed by the rights of others.

The court was sympathetic. But what could it do? A law that, for example, stopped men from forcing women to wear a veil would certainly protect the rights of others — in this case, women. But SAS positively wanted to wear a veil. And, said the court, there was no evidence that ‘women who wear the full-face veil seek to express a form of contempt against those they encounter’.

So the judges came up with something completely new — what the French government had called ‘respect for the minimum requirements of life in society’. An explanatory memorandum attached to the new law had said ‘the voluntary and systematic concealment of the face is problematic because it is quite simply incompatible with the fundamental requirements of “living together” in French society’. That concept, said the judges, could be linked to protecting the rights of others, which was a legitimate aim that would justify interference with rights under articles 8 and 9.

The court could still have dismissed the ban as disproportionate. But because opinions across Europe might reasonably differ and France had struck a balance through the democratic process, it decided to allow the government a wide ‘margin of appreciation’. So, by 15 votes to two, the burqa ban was lawful.

Sharma pointed out afterwards that the ‘living together’ concept was new law – though the Belgian government had relied on it during the oral argument. ‘The real danger this new approach poses is that the rights of minorities may in future be outweighed by the wider public interest of living together in harmony,’ the solicitor said. Dr Eirik Bjorge, an Oxford don who advised SAS, thought the court had ‘added the ill-defined concept of living together (vivre ensemble) to its already very slippery and deferential doctrine of the margin of appreciation’.

But what’s wrong with being deferential to democratic governments on contentious issues? Sure, this is a cop-out. But it’s one that shows the Strasbourg court now has a well developed sense of self-preservation.

joshua@rozenberg.net