Freedom of Religion
Freedom of Expression and Freedom of Religion=fundamental rights and essential components of democracy
J.S Mill: without freedom or to express thought or beliefs then truth cannot be found or questioned.
Handyside v the UK: Without political expression in a pluralist society, democracy becomes meaningless.
Both Freedom of Expression and Freedom of Religion= Qualified right.
These rights often clash. Freedom of religion can clash with itself, where different beliefs conflict.
Article 9 of ECHR
1. 1. Everyone has the right to freedom of thought, consciences and religion; this right includes the freedom to change religion and belief, and freedom, alone or with other, to manifest their religion or belief in worship, teaching, practice and observance.
This is internal, and cannot be restricted.
2. 2. The freedom to manifest one’s religion or beliefs shall 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.
External: this part of the article falls as a qualified right.
Kokkinakis v Greece
ECtHR on the importance of protection of religious and non-religious beliefs: ‘it is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism from a democratic society, which has been dearly won over the centuries, depends on it.’
Scope of ‘thought, conscience and belief’
ECtHR has given a wide and flexible interpretation of religion. It includes established religions like Christianity, Buddhism and Judaism, as well as more recent religions such as Jehova’s Witnesses and the Church of Scientology.
ECtHR also recognises other beliefs under Article 9, such as veganism and pacifism. The ECtHR doesn’t recognise all beliefs under Article 9, as Pretty v the UK shows; the conviction on the right to assisted suicide did not meet the threshold for belief.
Article 9(2): Limitations to the Manifestation of
Manifestation of religion is a qualified right. For the state to interfere with the right to manifestation of religion, if must be prescribed by law, meet a legitimate aim and be necessary in a democratic society.
Legitimate Aims: As set out in Article 9(2)
a. a. Interests of public safety: R v Taylor: Convicting a Rastafarian for possession of cannabis was ruled as in the interests of public safety. R(Suryanada) v Welsh Ministers: a bovine TB infected bullock was not exempt from slaughter even though it was seen as sacred in the hindu religion-it was in the interest of public safety.
b. b. Protection of Public Order: Pendragon v the UK: ban on druid order from accessing Stonehenge
c. c. Health or Morals
d. d. For the Protection of the rights and freedoms of other: Ghai v Newcastle City and others: Ban on open air funeral pyres (though an appeal later found it to be in compliance with the Cremation Act 1902).
Necessary in a Democratic Society
Many cases are decided on whether a measure in necessary in a democratic society. To decide this, the ECtHR uses the concept of proportionality, which is finding the balance between the community and the individual, and a margin of appreciation. A wide margin of appreciation means that there is less likely to be a violation, a narrow margin means there is more likely to be a violation.
Lawts v Italy: Wide margin of appreciation: no violation of neutrality of religion and state.
Sahin v Turkey: Proportionality: balance between community and individual; in favour of the community.
Can Article 9 Be Used in Domestic Courts?
HRA allows for claims of protection of Article 9 in UK courts. S.1 of HRA: defines the ECHR rights ‘given further effect’ by the Act; Article 9 included in list. So, if public authority removes Article 9, they can be taken to UK court, as under S.6 of HRA.
Courts can use S.3 in dealing with Article 9 cases, as in Ghai v Newcastle City Council and others: the law was interpreted using S.3 of the HRA to include a funeral pyre in the definition of ‘building’ to allow for an open air funeral pyre to be lawful.
If S.3 can’t be used, S.4 of HRA must be used, a declaration of incompatibility. Though, S.3 is the preferred approach.
Article 9 and Article 10
Article 9 can complement Article 10: but these articles can also conflict: this is where expression conflicts with belief or religion.
· A person should be free to express their religious belief
· Freedom of expression doesn’t extend to take away someone else’s religious freedom
1. How does the law protect the right to express religion
2. How does the law restrict freedom of expression to protect a person’s right to religion, and is the restriction justified.
Exemptions on Religious Grounds
There are allowances in UK law for beliefs of individuals:
- Faith schools are exempt from the Equality Act prohibition on discrimination on the grounds of religion/belief to enable education in line with the school’s religious beliefs. When a faith school is oversubscribed, it can restrict entry to allow only children with the same religion/belief, or with parents of same religion/belief.
- Motor-cycle Crash Helmet (Religious Exemption) Act 1976: Sikhs who wear turbans don’t need to wear motorcycle helmets. S.11 Employment Act 1989: exempts Sikhs wearing turbans from wearing safety helmets on construction sights
- Schedule 12 The Welfare of Animals (Slaughter or Killing) Regulations 1995 allows for religious slaughter where animals are not pre-stunned, which is required by UK legislation and EU regulations.
- S.139 Criminal Justice Act 1998: makes it a criminal offence to carry an article with a blade or point; defence allowing for such articles to be carried if for religious reasons; allowing Sikhs to carry Kirpans
Protection from Religious Discrimination in Civil
Due to EU obligations, UK extended the law on discrimination in employment to cover discrimination on the grounds of religion. The labour government introduced the Employment Equality (Religion or Belief) Regulation 2003, but this was replaced with the Equality Act, a law designed to prevent discrimination. It holds a number of protected characteristics, and religion is one of these characteristics. S.9 defines religion= ‘religion or lack of religion; belief means any philosophical belief or lack of such belief’. The Guidance to the Act puts forth atheism and humanism as examples of belief.
Nicholson v Grainger Thirst plc: Shows the wide scope of ‘philosophical belief’; belief in climate change protected by Act.
S.13 of Equality Act: it is illegal to directly discriminate against someone because of their religion, including discrimination by association/perception. There is a general exception: being of particular religion may be an occupational requirement. It must be shown, though, that the requirement is a proportionate means of achieving a legitimate aim.
It also illegal to indirectly discriminate; apply practice/policy that particularly disadvantages people of particular religion. Can be justified (defence)
S.26 of Equality Act: illegal to harass someone. Harassment=unwanted conduct that violates a person’s dignity/creates an intimidating/hostile/offensive environment having regard to all circumstances and the perception of the victim.
There are also provisions in Act in relation to victimization in S.27 of Act. Victimization=subjecting someone to detriment where an individual makes a discrimination claim, or supports a discrimination claim. Act looks to prevent.
Williams-Drabble v Pathway Care: Indirect discrimination, work rota conflict with Christian practice. Successful claim.
James v MSC Cruises: Indirect discrimination, work hours conflict with 7th Day Adventist practice. Defence of justification successfully used here.
Potentially strong protection under Equality Act: law covers direct/indirect discrimination, harassment, victimization. But restrictions can be placed on person’s right to express religion; restrictions can be justified in certain circumstances: as in James v MSC Cruises.
Exceptions to prohibition of discrimination: relig
Equality Act: accepts in limited situations discrimination on grounds of sex/sexual orientation, if needed to comply with doctrines of religion/avoid conflict with strongly held beliefs of followers. E.g. Catholic Priests must be male.
Balances peoples strongly held religious beliefs with principle of non-discrimination; also very narrow exceptions.
Freedom of Religion and Reasonable Accomodation
Equality and Human Rights Commission seeking to intervene in cases of Lillian Ladele(marriage registrar, refuse to do civil partnerships), Gary McFarlane(refuse to give sex therapy to same sex couples), Shirley Chaplin(moved to another position in employment for wearing cross). Cases concern religious discrimination in the workplace. All unsuccessful in claims. Nadia Eweida: Recently won case in European Court of Human Rights over employment issues about wearing a cross.
Commission argue that judges had interpreted existing human rights and equality law insufficiently to protect freedom of religion/belief.
Equality and Human Rights Commission’s Press Relea
‘The commission will propose the idea of ‘reasonable accommodations’ that will help employers and others manage how they allow people to manifest their religion or belief. For example, if a Jew asks not to have to work on a Saturday for religious reasons, his employer could accommodate this with minimum disruption simply by changing the rota’.
· Low number of Claims brought: in first 3 years; only 850 tribunal claims for religious discrimination. This, compared to 45’000 sex discrimination cases. Plus, a small fraction of religious discrimination cases heard, fewer appealed. This could either; show that employer are complying with the new law; but, also that employees aren’t comfortable exerting rights.
· Low success Rate in Claims Brought: There have been a number of indirect discrimination cases where employers have successfully used defence of justification. Shows law favours the powerful?
Azmi v Kirklees Metropolitan County Council: Unsuccessful claim, indirect discrimination justified (wearing of niqab interfere with teaching; claimant teaching assistant)
R (on the application of Begum) v Head Teachers and Governors of Denbigh School: Unsuccessful claim of discrimination; House of Lords found no interference with article 9.
The law’s protection of freedom of religion is not as good as it first seems. The recent cases, Chaplin etc., indicate that when expressing your religion, if it infringes the rights of others it may be restricted.
Sarika Singh: Successful claim of indirect discrimination; success because bracelet, ‘kara’ was a less obvious manifestation of religion compared to Begum and Azmi.