Riley: French Headscarf ban probably illegal

8.06.59pm GMT Thu 19th Feb 2004

Commenting on the recent French laws to ban the wearing of all religious symbols in schools, Dr Alan Riley said: "The French government is likely to get a very rough legal ride with the headscarf ban."

Veena Hudson meets a protestor who doesn't like the French ban on wearing the headscarf

He continued, "It is doubtful whether the ban could survive a challenge under the freedom of religion provision of the European Convention of Human Rights (Article 9)."

Alan also pointed out that the French government were likely to face further difficulties when new EU anti-race and religious discrimination legislation comes into force across Europe in 2007. "EU law is also likely to provide the basis for several legal challenges against the ban once the new EU discrimination legislation comes into force. Already English law would provide protection for the headscarf under race relations legislation. Its difficult to see how the EU law would differ from the English legal position"

Alan and East Midlands Euro MP Bill Newton Dunn have received a petition against the French action signed by more than 8,000 residents in the Leicester area.

Notes to editors

1. Dr Alan Riley is Senior Lecturer in European Competition Law at Nottingham Law School and a Research Fellow at the Centre for European Policy Studies in Brussels. He is also a Solicitor specialising in European Law, and has worked for the Legal Service of the European Commission in Brussels.

2. Article 9 of the European Convention of Human Rights provides a general protection for religious thought and expression. Article 9(2) permits restrictions to such thought and expression but they have to be legitimately justified on such grounds as public security or public health.

3. In 2000 the EU adopted a series of anti-discrimination directives. The key directives are Council Directive 2000/43/EC on implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. This directive is of very broad application and applies specifically to education. So in principle could be used to directly challenge the headscarf ban in schools. Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation also provides protection against religious discrimination. However, this directive is of narrower scope and would only provide protection in the workplace and in vocational colleges.

4. The broader point is that English law has the most developed anti-discrimination legislation in Europe. Although up till now it has not had much direct anti-religious discrimination the anti-racist legislation is very developed. In particular the courts have deemed prohibitions on certain religious practices, such as the wearing of Turbans as race discrimination. Given the developed English case law it is difficult to see how the EU courts would rule differently.

5. A Q&A on the Headscarf issue is available online in the downloads section of this website