ARTICLE 9: WHAT IS IT, WHERE DOES IT COME FROM,... DO WE NEED IT (ANYMORE)?

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ARTICLE 9: WHAT IS IT, WHERE DOES IT COME FROM, AND
DO WE NEED IT (ANYMORE)?
WHAT IS ARTICLE 9?
1. The Universal Declaration of Human Rights adopted by the fifty eight
Member States of the United Nations General Assembly on December 10,
1948, defines freedom of religion and belief as follows: "Everyone has the
right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or
belief in teaching, practice, worship, and observance." (Article 18).
2. Article 9 (1) ECHR reflects this provision and provides: “Everyone has the
right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in
community with others and in public or private, to manifest his religion or
belief, in worship, teaching, practice and observance.” (emphasis added)
3. It is important to note its nature as a qualified right, that is to say one where
action interfering with the exercise of the right is authorised but only where it
can be justified. Accordingly, Article 9(2) provides that the freedom to
manifest one’s religion or beliefs can be subject only to such limitations as are
“prescribed by law and are necessary in a democratic society in the interests
of public safety, for the protection of public order, health or morals, or for the
protection of the rights and freedoms of others”.
4. It will at once be noticed that what is protected here is not the private realm
alone. It is not simply the freedom to believe what you like that is protected,
but rather the freedom to manifest that belief that is, for practical purposes, at
the centre of right. Why that should be so on matters which are essentially
matters of conscience, is a subject to which I return at the conclusion of the
talk.
5. Second, it is not only religion proper, but any number of “beliefs” which
potentially fall within what is evidently broader than even the broadest church.
INTRODUCTION AND OUTLINE
6. I hope that this talk represents a provocative look at some of the cases and
broader issues on this topic. My purpose is not to state a particular position,
but to sketch in some of the more unusual aspects of this article and to
stimulate debate about how easily or otherwise it fits in with what may be
expected of human rights law in our increasingly secular country (see
Appendix I). I do so from a sceptic’s point of view in order to illuminate these
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features of the law which currently appears to want simultaneously to take
Article 9 seriously and also to ignore it whenever convenient.
7. In July 2005, Lord Justice Mummery, with some acuity, observed in his
judgment in Copsey (Stephen) v WWB Devon Clays Ltd [2005] EWCA Civ
932 at [3]
“Until recently there has been considerably less activity in the English
courts and tribunals about Article 9 than about the Convention Articles
relating to the right to life, to a fair trial, to private life and to freedom
of expression. It is probably only a matter of time, however, before the
fundamental and pervasive character of Article 9 will be more fully
revealed. If the Article means what it says, it has the potential to be far
reaching in its legal, social, economic and political effects.”
8. Since then there has been a considerable number of cases in the higher courts
involving Article 9. At a time when human rights litigation is under some
scrutiny for having introduced a culture of complaint over matters not of
central importance to the maintenance of human dignity, some might think
much of the litigation under Article 9 has a particularly absurd ring to it.
a. On issues which potentially affect millions of individuals, such as
the lawfulness of being dismissed for refusing to work on your
faith’s holy day, the courts have reached a rather speedy conclusion
that there is no interference with Article 9 rights.
b. On the other hand, the legality of a decision of the Welsh
authorities that a bullock who had tested positive for the infectious
disease bovine tuberculosis should be slaughtered went to the Court
of Appeal.
c. Cases involving medical treatment of children against the religious
views of their parents (most dramatically cases involving blood
transfusions and Jehovah’s Witnesses) are largely resolved by
judges describing the importance of religious belief to the family
concerned in grave terms and reciting the protection afforded to it
in Article 9 in even more earnest tones and then proceeding to
explain why after all the transfusion should take place.
9. There are, I suggest, two overall and contrasting themes which emerge form
the case law. First, things which are genuinely disruptive of life in our
predominantly secular society, such as work and the distribution of
opportunities and resources (particularly public resources), are too important
to be resolved by paying attention to religious belief however deeply held.
Secondly, peripheral disputes, which make no particularly heavy demands on
anyone but which can be presented as articles of faith for adherents have
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enjoyed much more success and have frequently required the full majesty of
the higher courts for resolution. On this basis I suggest that it is no accident
that the area of individual clothing and the wearing of symbols, falling as it
does into the latter category, has become quite such a fertile area of late.
10. This is not to say that the cases referred to above do not arrive at common
sense answers (at least to the minds of many). The real question however is
why they must do so by resorting to a sort of judicial lip service being paid to
Article 9 (at best) or forensic sleight of hand (at worst). The answer lies in the
elevation of the protection for the manifestation of religious belief to the
pantheon of those civil and political rights protected by law which brings
about these problems because of the inevitably wide application of such a
provision. The fact that few in the judiciary seem prepared to apply the
protection too extensively is perhaps a sign that there is something
fundamentally at odds in its inclusion among a generally uncontroversial list
of entitlements. We can see traces of this theme in the jurisprudence under
Article 9.
11. It does not take any great feat of imagination to see that protection for the
manifestation of religious beliefs on the basis that such things are
fundamentally worthy of protection for their own sake (as belief systems)
rapidly brings the potential for conflict with the obligation to secure the
protection of other convention rights (e.g. freedom of speech, antidiscrimination etc.).
WHERE DID ARTICLE 9 COME FROM?
12. By this I mean asking the question why was it included in the Convention at
all? Here we are back to the fact the Convention was, in part, an instrument
for the prevention in Europe of the genocide that had characterised Hitler’s
Germany and which had religious discrimination and hatred on a grand state
sponsored scale at the heart of the political project. It is not hard to see why
those framing the convention sought to include the practice of religious belief
as a protected activity. Equally however, and given the problems which I will
be suggesting it presents, could it not be said that there is no comparable and
specific social imperative today for the constitutional protection of religion?
HOW WELL DOES ARTICLE 9 PROTECT RELIGIOUS AND OTHER
BELIEFS?
13. The absolute freedom privately to hold particular religious or philosophical
views gives rise to few practical difficulties. Litigation chiefly concerns the
legality of alleged limitations on manifestations of religious belief. In such
litigation, there are four stages, which are essentially control mechanisms, for
disposing of cases which are not worthy of the protection of Article 9:
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a. Beliefs Do the ‘beliefs’ of the Claimant come within article 9?
b. Manifestation Is the activity that is the subject of the limitation
properly understood to be a ‘manifestation’ of such beliefs?
c. Interference If the article 9 right to manifest one’s religion or beliefs is
not interfered with, then there is nothing to justify.
d. Justification For interference to be justified under article 9(2), that
interference must be prescribed by law, have one of the legitimate aims
set out in the article, and be proportionate to that legitimate aim.
I. Religion or belief
14. There are inherent difficulties with protecting people’s beliefs. That is because
some people will believe anything. The law therefore has to develop specific
tools to weed out those beliefs that in contrast to some religious beliefs which
are regarded as rational, are not seen as worthy of protection at all.
15. The House of Lords has recently stressed the importance of giving the benefit
of the doubt to the Claimant in this area to avoid the problem of subjective
interpretation. In R (Williamson) v SS Education and Employment [2005] 2
AC 246, Christian parents who accepted certain biblical prescriptions
concerning corporal punishment of children challenging legislation banning
the administration of corporal punishment in independent schools, as a
violation of art 9 rights. Lord Nicholls at [23] and [24] set out the requirements
for a belief to come within article 9:
a. The belief must not be trivial.
b. The belief must be consistent with basic standards of human dignity or
integrity.
c. “The belief must also be coherent in the sense of being intelligible and
capable of being understood. But, again, too much should not be
demanded in this regard. Typically, religion involves belief in the
supernatural. It is not always susceptible to lucid exposition or, still
less, rational justification. The language used is often the language of
allegory, symbol and metaphor. Depending on the subject matter,
individuals cannot always be expected to express themselves with
cogency or precision.” This position is a clear reference to, and
relaxation of, the Strasbourg view of what amounted to ‘beliefs’ in
Campbell and Cosans v United Kingdom 4 EHRR 293 at [36], namely
beliefs that “attain a certain level of cogency, seriousness, cohesion
and importance.”
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d. The belief does not have to be religious. “The atheist, the agnostic, and
the sceptic are as much entitled to freedom to hold and manifest their
beliefs as the theist.” But “for its manifestation to be protected by
article 9 a non-religious belief must relate to an aspect of human life or
behaviour of comparable importance to that normally found with
religious beliefs.” It is mot immediately obvious what might be
included in this category at all.
16. Beliefs for the purposes of article 9 have been held to include:
a. Pacifism, as in Arrowsmith v UK 19 DR 5 (1980);
b. A belief that “the appropriate framework for sexual relations is within
marriage" P (R on the application of) v Governors Millais School
[2007] EWHC 1698 (Admin);
c. A belief that as part of their proper upbringing, when necessary
children should be subject to corporal punishment at home and at
school, Williamson per Lord Nicholls at [35]. It might legitimately be
asked in relation to this point what this adds to the moral quality of the
act in question (corporal punishment). Does the fact that it is
administered as part of a belief system present us with an extra reason
for allowing it?
17. One of the few examples of an asserted belief being deemed outside article 9
was Countryside Alliance and Anor (R on the application of) v Her Majesty's
Attorney General & Anor [2006] EWCA Civ 817, where CA rejected a
challenge to the ban on hunting inter alia on the ground that it was an
unjustified interference with the manifestation of the hunters’ beliefs.
“[Counsel] say submitted that hunting is at the very core of
mankind's psyche and those who exercise their conscience to follow
a way of life embracing that psyche subscribe to a belief that is at
least of comparable importance to that of a religious belief: to
many it is of greater importance. We do not consider that this
ingenious argument would find favour with the court at Strasbourg,
which has referred to the main purpose of hunting in the present
day as providing pleasure and relaxation for those who take part in
it while respecting its traditions...” [at 177]
II. Manifestation
18. In Williamson at [35] Lord Nicholls held that when parents administer
corporal punishment to their children in accordance with these beliefs they are
manifesting these belief (a conclusion which gets no less startling the more
times you read it). His reasoning on what amounted to a ‘manifestation’ was
as follows.
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a. Not all acts motivated by a religion or belief are ‘manifestations’ of
that belief. As a pacifist Miss Arrowsmith distributed leaflets to
soldiers, urging them to decline service in Northern Ireland. But the
contents of the leaflets did not express pacifist views, nor did the act of
distributing the leaflets do so. She was not thereby manifesting her
pacifism: Arrowsmith v United Kingdom 3 EHRR 218. Now, it is
possible to discern the reason why it was not thought desirable to
extend the protection of the ECHR to the claimant in Arrowsmith, but
again, the means of doing so, is at first sight odd; we are being told that
urging others not to fight as part of an army is not a manifestation of
pacifism. It is clear I suggest that this is a useful judicial tool for
limiting the scope of Article 9 but its basis in logic, when judged by
reference to its results, is more difficult to discern.
b. To be a ‘manifestation’, the act must be ‘intimately connected’ to the
belief. Again, the House of Lords emphasised the subjectivity of this
question: consideration must be given to what the claimant believes he
or she is obliged to do as a consequence of their belief. 1 If the belief
takes the form of a perceived obligation to act in a specific way, then,
in principle, doing that act pursuant to that belief is itself a
manifestation of that belief in practice.
c. Somewhat reassuringly, only manifestations consistent with basic
standards of human dignity or integrity are to be protected under
Article 9; therefore a manifestation of a belief which involved torture
to others would not qualify for protection. The fact that this caveat has
to be introduced at all may be said to be a clue that there is something
different about Article 9.
19. Examples of where an activity has not been found to be a manifestation of a
belief include:
a. P (R on the application of) v Governors Millais School [2007] EWHC
1698 (Admin) it was held that a schoolgirl was under no obligation, by
reason of her belief in no sex before marriage, to wear a ‘Silver Ring
Thing’ purity ring to school, as she herself conceded. In contrast, two
Sikh girls were allowed to wear a Kara bangle by the school where it
was considered by them to be a requirement of their faith. Hereabouts
in the law we are here dancing on the head of a pin.
b. X and Church of Scientology v Sweden (1979) 16 DR 68, an
advertisement by the Church of Scientology for the E-meter, which
1
For example, there are many different views on whether it is necessary for religious adherents to wear
particular head coverings.
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was claimed to measure the electrical characteristics of the static field
surrounding the body.
III. Interference
20. The approach of the courts has been much stricter in respect of what
constitutes interference with the manifestation of a right. This approach
largely derives from Strasbourg authorities on employment and other
professional situations. In judging what is a material interference, the ECt HR
has had regard to limitations which the complainant has voluntarily accepted.
Thus in Stedman v. United Kingdom (1997) 23 EHHR CD168 the applicant
was dismissed for her refusal to work for her private sector employer on
Sunday. It was held that there was no interference with her ability to manifest
her religious beliefs, because she had voluntarily accepted the job. Similarly,
in Copsey (Stephen) v WWB Devon Clays Ltd [2005] EWCA Civ 932, the
Claimant contested his dismissal by Devon Clays when he refused to accept
their requirement that he should agree to work on Sundays if needed.
Mummery LJ noted “in the absence of the Commission rulings, I would have
regarded this as a case of material interference with Mr Copsey's Article 9
rights”, but followed Strasbourg in deciding it was not. What the Court of
Appeal has highlighted is that in this respect Article 9 does not appear to have
enough teeth to ensure a culture of compliance with religious obligations in
very important areas of life and where the plea for the freedom to observe
religious ritual is genuine.
21. The courts have extended this reasoning more contentiously into the highly
politicised area of religious dress in schools. In R (Begum) v Headteacher and
Governors of Denbigh High School [2006] UKHL 15, a majority of the House
of Lords found that there was no interference with Art 9 in a situation where a
person voluntarily accepted a place at a school with knowledge of their
uniform policy that did not permit the wearing of a jilbab, where could have
chosen to attend another school where the jilbab was permitted. Only Baroness
Hale dissented, finding that it was an interference, not least because in reality
parents imposed a choice of school on their children.
22. In short, the current approach [as recently applied in R (on the application of
X) v Y School [2007] EWHC 298 (Admin), concerning a school’s prohibition
against wearing the niqab veil] is:
a. Article 9 does not require that one should be allowed to manifest one's
religion at any time and place of one's own choosing;
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b. there is no interference with an article 9 right where there is an
alternative place at which the services in question can be provided
without the “objectionable” rule in question.
IV. Justification
23. Such is the height of the hurdle of ‘interference’ (and, to a lesser extent,
manifestation), that relatively few cases on Article 9 are actually decided on
the point of justification. It is some indication of the somewhat incongruous
state of the case law on Article 9 that one such case is Surayananda (R on the
Application of) v The Welsh Ministers [2007] EWCA Civ 893. This case
concerned Shambo, a bullock owned by the Community of the Many Names
of God. Preservation of life is a fundamental tenet of the Community's beliefs,
and the Court of Appeal noted his slaughter would be “comparable, in the
Community's view, to the killing of a human being.” Unfortunately, Shambo
tested positive for bovine tuberculosis [34], “one of the most difficult animal
health problems that the farming industry faces in GB today”, and the Welsh
authorities ordered that he be slaughtered. It is perhaps not surprising
(especially in the light of recent calamities to British livestock) that the Court
of Appeal concluded that having regard to the very considerable problems
presented by bovine TB, the decision to eliminate the risk presented by the
bullock by slaughter, and not to permit an exemption, was justified. 2
[Further example: In Connolly v Director of Public Prosecutions [2007]
EWHC 237 (Admin), a Catholic woman challenged her prosecution for
sending photographs of aborted foetuses under the Malicious
Communications Act 1988, as being material of a grossly offensive nature,
on article 9 and 10 grounds. No violation of article 9 was held, her
conviction being necessary in a democratic society, her right to express her
views about abortion not justifying the distress and anxiety that she
intended to cause those who received the photographs.]
V. An ambivalent approach?
24. In terms of the control mechanisms then, the courts take a rather ambivalent
approach. On the one hand that there is an increasingly generous approach to
whether beliefs, and the manifestation thereof, come within article 9, but on
2
What is surprising was that the applicants had been successful in gaining a quashing order at first
instance on the basis that the Welsh authorities had not engaged in a balancing exercise between the
public health justification and article 9 rights. The Court of Appeal overturned this, following Begum
that Article 9 complaints are about substance not procedure: any lack of consideration of article 9 rights
in a decision-making process does not per se render a decision in breach of article 9.
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the other hand this is offset by the maintenance of a quite restrictive approach
to the question of interference, such that only rarely do decisions come down
to the issue of justification. The courts therefore choose to achieve the same
results (i.e. no breach of Article 9) by the use only of the last control
mechanism. The result is therefore an inclusive approach to what counts as
belief thereby reducing the scope for rulings which may offend those holding
certain beliefs of an unusual nature coupled with a robustly pragmatic refusal
to let any of it make any difference.
25. However, if we are to take Article 9 at its word, then this surely is the wrong
way around. There must be a value judgment as to what is worthy of
protection. If something is a belief for the purposes of Article 9 then it ought
to be protected in the same way as any other. To do so is to give Article 9 the
scope and force of other comparable Convention rights. That this is legally the
right answer seems to me to be clear. It is far less clear whether this sort of
approach would be politically and socially acceptable (and indeed many
reasons to suppose that it would not).
LEGAL PROTECTION FOR RELIGION AND RELIGIOUS BELIEF
OUTSIDE ARTICLE 9
26. The case law cited above shows that the law has in general sought to steer a
careful path in delimiting the degree of protection which human rights law
provides for religion and belief. It has done so through applying restrictive
meanings to many of the core concepts contained in Article 9. However, the
legal protection of religion has not stood still and outside the context of Article
9 there has been a willingness to extend statutory protection to religious
communities which some may find surprising. In these respects the
jurisprudence under Article 9 has not kept pace with the degree of willingness
to extend the legal protection of religion.
27. I take two examples of statutory intervention in this area.
28. The first example is the Religious and Racial Hatred Act 2006 (amending the
Public Order Act 1986)(Appendix II). This piece of legislation was introduced
(after two previous failed attempts) to place a specific offence on the statute
book such that “A person who uses threatening words or behaviour, or
displays any written material which is threatening, is guilty of an offence if he
intends thereby to stir up religious hatred” is guilty of an offence. The offence
may be committed “in a public or a private place”. As a result of a great deal
of pressure at the time the scope of the offence was amended (to insert a
requirement of intention as an ingredient of the offence) and there is also a
wide ranging exemption clause which provides:
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“Nothing in this Part shall be read or given effect in a way which prohibits
or restricts discussion, criticism or expressions of antipathy, dislike,
ridicule, insult or abuse of particular religions or the beliefs or practices
of their adherents, or of any other belief system or the beliefs or practices
of its adherents, or proselytising or urging adherents of a different religion
or belief system to cease practising their religion or belief system.”
(section 29J)
29. The second is the Equality Act 2006 which Jeremy Hyam will be dealing with
in his talk. The broad point is however that the Government (and Parliament)
has embraced the idea that there should be an express exemption from the
UK’s law against religious discrimination on grounds of religious belief for
faith schools. Why the education of the young in separate religious schools
should be thought to present such a compelling a case for an exemption from
the principle of equality of access to educational opportunities is a deeply
controversial issue but one which brings into sharp focus debates about the
conflict between equality and protection for religion.
30. But there are other shifts in favour of protection of religion or at least religious
sensibility, which occur at a level below legislation, in the cut and thrust of
public debate generally and in the political process of passing legislation
through Parliament. I give two examples.
31. First, the position of the Catholic Church in running adoption agencies. Here
pleas were made at the highest level for Catholic adoption agencies to be able
to continue to discriminate against gay people in the placing of children for
adoption on the basis that to require them not to discriminate was an affront to
religious freedom 3 . The government was initially sympathetic 4 but later
insisted that the law it had passed giving gay people the right to receive
services without discrimination should be applied to Catholics too.
32. The only question here is why this was ever an issue in the first place. If you
are a government that believes (as this one says it is) that discrimination is a
social evil which denies people their fair share of resources, opportunities and
entitlements and that the practice of discrimination offends the principle that
people must be treated equally then it is at first sight difficult to see why the
imposition of discriminatory practices and disadvantages is made more
palatable by being founded on hundreds of years of religious doctrine or
“conscience”.
3
The Archbishops of Canterbury and York joined a call made by Cardinal Murphy-O’Connor to the
effect that “rights of conscience cannot be made subject to legislation, however well-meaning”.
4
At least, the Communities Secretary Ruth Kelly was known to be in favour of an exemption.
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33. The second example takes a now, apparently, historical example of the UK
government’s attitude to the conflict between freedom of speech and religion.
Until very recently, the received wisdom in this country, and certainly among
the liberal political class, was that freedom of speech and perhaps particularly
freedom of political speech is at the heart of what it means to live in a
democracy. This means that giving offence and heaping opprobrium of all
kinds upon those with whom you have fundamental disagreement is simply
par for the course. It does not require any, let alone some special, justification.
You can by this means bring almost any institution into question, even
religion. The quality of the debate does not have to be high, it does not have be
couched in the language of the broadsheets or the university seminar room, it
is enough that you are espousing your views. You do not have to stick to
“poking fun”; you can be viciously satirical.
34. This position was tested during the Salman Rushdie affair. In the eighties, the
Booker prize winning British author provoked a world-wide outcry with the
publication of “The Satanic Verses”. The novel was said to have been gravely
offensive to Muslims. This led to scenes of his book (and worse his effigy)
being burned in the streets and then to a formal fatwa being issued by the then
theocratic leader of Iran, Ayatollah Khomeini. The issue became a cause
celebre for the liberal establishment here and abroad. The book burning was
condemned while the book itself became an international best seller. The affair
was notable for a number of reasons, not least the fact that very few (one is
tempted to say almost none) of the demonstrators had read the book and had
thus been in a position to be personally offended by its contents. But the
reaction from the British government and from the liberal establishment was
one of outrage against the application of an intolerant set of religious beliefs to
the work of a novelist whose freedom to rock the boat was seen as central to
the lifeblood of democratic culture.
35. Contrast this position with that which followed the publication in Denmark, in
the newspaper Jyllands-Posten, of several cartoons depicting the prophet
Mohammed. This affair again provoked an international outcry. This time it
occurred several months after the publication and largely, it seems, was stoked
up by a number of radical clerics in whose interests it was to stir up antiwestern feeling in the middle east. People died and many were injured in the
ensuing unrest. It is difficult to know how many of these people had seen the
actual cartoons themselves and, if they did, whether they were genuinely
offended by them but their number may not have been that much greater than
the readership of the Satanic Verses. There were protests in this country,
including those outside the BBC where small number of radical muslims held
placards proclaiming death as the appropriate sanction for those responsible
for showing the pictures on the TV.
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36. This time the response of the then Home Secretary and former radical student
politician, Jack Straw was that publication of provocative cartoons was
something to be deprecated as being needlessly insensitive to the feelings of a
religious minority and to be condemned on those grounds 5 . This was coupled
with a public statement commending those newspaper and TV editors who had
adopted a practice of self censorship in not showing the images. For those who
were looking for it, this was a disappointing defence of the long tradition of
mocking political cartoons which has characterised many of our newspapers
throughout the 20th century and before. More importantly it was a sign of the
increased weight to be accorded to religious views and sensibilities in public
debate at the highest levels of our public life.
37. It will be interesting to see if this increased tolerance of religious difference,
even where it apparently transgresses other deeply held principles, will find its
way even more emphatically into legislation beyond the human rights sphere,
such as employment and education.
38. But there must in my view be a very real question of whether there is a need
for this sort of legal protection at all. It is difficult to see a clear case for
protecting the manifestation of religious belief beyond the private sphere and
in the public sphere beyond anti-discrimination law (i.e. do not discriminate
against people on religious grounds when it comes to the provision of
opportunities for employment and the provisions of goods and services) and
the already existing prohibitions of the criminal law.
39. Such a state of affairs would send a signal that in most circumstances political
society was not interested in regulating the freedom of individuals to carry on
their private religious or other beliefs but that neither was it inclined to bestow
special public protection on them. It is far from clear that such a state of affairs
would present any real obstacles to the maintenance (and indeed flourishing)
of strong faith communities and commitments generally and would maintain a
comparable level of personal freedom to follow one’s chosen path of belief in
religion to that which is presently the case.
5
It is interesting to note that the publication of such cartoons would not, it appears, have raised any
problems under Article 9. See Green (R on the application of) v City Of Westminster Magistrates Court
[2007] EWHC 2785 (Admin). This cases concerned the desire of the Applicant to bring a private
prosecution for the ancient offence of blasphemous libel against BBC for broadcasting 'Jerry Springer:
the Opera'. The claim was not raised on human rights grounds and rightly so, in view of Lord Justice
Hughes (obiter) “Whilst the law of blasphemy may well be 'consonant' with the right to freedom of
thought and to manifest one's religion enshrined in Article 9 – see Wingrove v UK (1996) 24 EHRR 1
at para 48, it does not seem to us that insulting a man's religious beliefs, deeply held though they are
likely to be, will normally amount to an infringement of his Article 9 rights since his right to hold to
and to practise his religion is generally unaffected by such insults.” The conduct complained of
therefore was not even unlawful, at least on human rights grounds.
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CONCLUSION
40. In conclusion, the recent case law on Article 9 reflects the rather contradictory
impulses of being open-minded in regards to what constitutes a ‘belief’ (and to
a lesser extent its manifestation), and following Strasbourg in keeping the
Pandora’s box of article 9 essentially closed in areas such as employment and
education which represent the most direct interaction between a person’s faith
and their daily life. Indeed, it could be said that it is precisely the potential
breadth of article 9 that would seem to lead to the at times rather specious
arguments as to why claims under it are rejected.
41. A final example of the refusal of courts to acknowledge the radical potential of
Article 9 in matters relating to millions is Boughton & Ors (R on the
application of) v HM Treasury [2006] EWCA Civ 504. Here, tax-paying
pacifists objected to the fact that their tax was paid into a single fund that was
used partly for military purposes. In rejecting the claim on the basis that the
payment of tax into a separate fund would not be a manifestation of belief,
Mummery LJ implicitly criticised the Strasbourg jurisprudence, before
proceeding to follow it:
“They have taken what may be thought to be a rather strict or narrow
line on the manifestation of religious and philosophical belief in a
number of areas central to the daily life of the individual citizen in the
modern state, such as employment, education and fiscal
responsibilities. In some respects the reasoning may be legally and
logically unsound.”
The same criticisms could be said to apply equally well to the current
jurisprudence of the English courts.
Owain Thomas*
*I am indebted to Matthew Donmall, our newest tenant, for the background research
for this paper. The debating points raised (provocative or otherwise) are mine and
should not be held against him.
Appendix I
Some interesting statistics on declared religious belief:
2001 UK Census
Those of no religion are the 2nd largest belief group, about 3 times as many as all the
other (non-Christian) religions altogether. 7,274,290 people said they had “no
religion” - though only 10,357 specified that they were atheists.
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Jedi Knights had 390,127 followers, and formed a larger group than several of the
“major religions”: Jews (259, 927); Sikhs (329, 358); Buddhists (144,453); or minor
religions such as Jainism (15,132), Zoroastrianism (3,738) or the Baha’i faith (4,645).
Office of National Statistics, http://www.statistics.gov.uk/cci/nugget.asp?id=293 .
British Social Attitudes, 2000
A survey of 3000 people in England , Scotland and Wales in 2000 found the proportion
of people who say they belong to no religion has grown from 31% to 44%.
( British Social Attitudes Survey , National Centre for Social Research, Nov 2000)
Appendix II
The Racial and Religious Hatred Act 2006
29A Meaning of “religious hatred”
In this Part “religious hatred” means hatred against a group of persons defined by
reference to religious belief or lack of religious belief.
Acts intended to stir up religious hatred
29B Use of words or behaviour or display of written material
(1) A person who uses threatening words or behaviour, or displays any written
material which is threatening, is guilty of an offence if he intends thereby to stir up
religious hatred.
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(2) An offence under this section may be committed in a public or a private place,
except that no offence is committed where the words or behaviour are used, or the
written material is displayed, by a person inside a dwelling and are not heard or seen
except by other persons in that or another dwelling.
(3) A constable may arrest without warrant anyone he reasonably suspects is
committing an offence under this section.
(4) In proceedings for an offence under this section it is a defence for the accused to
prove that he was inside a dwelling and had no reason to believe that the words or
behaviour used, or the written material displayed, would be heard or seen by a person
outside that or any other dwelling.
(5) This section does not apply to words or behaviour used, or written material
displayed, solely for the purpose of being included in a programme service.
29C Publishing or distributing written material
(1) A person who publishes or distributes written material which is threatening is
guilty of an offence if he intends thereby to stir up religious hatred.
(2) References in this Part to the publication or distribution of written material are to
its publication or distribution to the public or a section of the public.
29D Public performance of play
(1) If a public performance of a play is given which involves the use of threatening
words or behaviour, any person who presents or directs the performance is guilty of
an offence if he intends thereby to stir up religious hatred.
(2) This section does not apply to a performance given solely or primarily for one or
more of the following purposes—
(a) rehearsal,
(b) making a recording of the performance, or
(c) enabling the performance to be included in a programme service;
but if it is proved that the performance was attended by persons other than those
directly connected with the giving of the performance or the doing in relation to it of
the things mentioned in paragraph (b) or (c), the performance shall, unless the
contrary is shown, be taken not to have been given solely or primarily for the purpose
mentioned above.
(3) For the purposes of this section—
(a) a person shall not be treated as presenting a performance of a play by reason only
of his taking part in it as a performer,
(b) a person taking part as a performer in a performance directed by another shall be
treated as a person who directed the performance if without reasonable excuse he
performs otherwise than in accordance with that person’s direction, and
(c) a person shall be taken to have directed a performance of a play given under his
direction notwithstanding that he was not present during the performance;
and a person shall not be treated as aiding or abetting the commission of an offence
under this section by reason only of his taking part in a performance as a performer.
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(4) In this section “play” and “public performance” have the same meaning as in the
Theatres Act 1968.
(5) The following provisions of the Theatres Act 1968 apply in relation to an offence
under this section as they apply to an offence under section 2 of that Act—
section 9 (script as evidence of what was performed),
section 10 (power to make copies of script),
section 15 (powers of entry and inspection).
29E Distributing, showing or playing a recording
(1) A person who distributes, or shows or plays, a recording of visual images or
sounds which are threatening is guilty of an offence if he intends thereby to stir up
religious hatred.
(2) In this Part “recording” means any record from which visual images or sounds
may, by any means, be reproduced; and references to the distribution, showing or
playing of a recording are to its distribution, showing or playing to the public or a
section of the public.
(3) This section does not apply to the showing or playing of a recording solely for the
purpose of enabling the recording to be included in a programme service.
29F Broadcasting or including programme in programme service
(1) If a programme involving threatening visual images or sounds is included in a
programme service, each of the persons mentioned in subsection (2) is guilty of an
offence if he intends thereby to stir up religious hatred.
(2) The persons are—
(a) the person providing the programme service,
(b) any person by whom the programme is produced or directed, and
(c) any person by whom offending words or behaviour are used.
Inflammatory material
29G Possession of inflammatory material
(1) A person who has in his possession written material which is threatening, or a
recording of visual images or sounds which are threatening, with a view to—
(a) in the case of written material, its being displayed, published, distributed, or
included in a programme service whether by himself or another, or
(b) in the case of a recording, its being distributed, shown, played, or included in a
programme service, whether by himself or another,
is guilty of an offence if he intends religious hatred to be stirred up thereby.
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(2) For this purpose regard shall be had to such display, publication, distribution,
showing, playing, or inclusion in a programme service as he has, or it may reasonably
be inferred that he has, in view.
29H Powers of entry and search
(1) If in England and Wales a justice of the peace is satisfied by information on oath
laid by a constable that there are reasonable grounds for suspecting that a person has
possession of written material or a recording in contravention of section 29G, the
justice may issue a warrant under his hand authorising any constable to enter and
search the premises where it is suspected the material or recording is situated.
(2) If in Scotland a sheriff or justice of the peace is satisfied by evidence on oath that
there are reasonable grounds for suspecting that a person has possession of written
material or a recording in contravention of section 29G, the sheriff or justice may
issue a warrant authorising any constable to enter and search the premises where it is
suspected the material or recording is situated.
(3) A constable entering or searching premises in pursuance of a warrant issued under
this section may use reasonable force if necessary.
(4) In this section “premises” means any place and, in particular, includes—
(a) any vehicle, vessel, aircraft or hovercraft,
(b) any offshore installation as defined in section 12 of the Mineral Workings
(Offshore Installations) Act 1971, and
(c) any tent or movable structure.
29J Protection of freedom of expression
Nothing in this Part shall be read or given effect in a way which prohibits or restricts
discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of
particular religions or the beliefs or practices of their adherents, or of any other belief
system or the beliefs or practices of its adherents, or proselytising or urging adherents
of a different religion or belief system to cease practising their religion or belief
system.
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