Is there an Article 9 right to express illiberal or eccentric views?

The background

In 2011 Dr Hans-Christian Raabe, a GP, was appointed by the Home Secretary as an unpaid member of the Advisory Council on the Misuse of Drugs (“the ACMD”) established under the Misuse of Drugs Act 1971. He was asked in interview if there was anything about his professional or personal history which, if brought into the public domain, might cause embarrassment to the ACMD or the Home Office. Shortly after criticism of his appointment appeared in the media, the Home Office learned that Dr Raabe had co-written a disapproving article in 2005, “Gay Marriage and Homosexuality: some medical comments”, which he had not mention at his interview.

Following a number of exchanges with James Brokenshire, Parliamentary Under Secretary of State for Crime Prevention, Dr Raabe’s appointment was revoked in February 2011 on two grounds. The emergence of his co-authorship of the article into the wider public domain had raised concerns over his credibility in providing balanced advice on drug misuse issues affecting the LGBT community and impacted on the smooth running of the ACMD. Moreover, his failure to disclose his co-authorship raised serious issues about his judgment and his failure to appreciate that the views expressed in it could affect his credibility as an adviser on drug misuse issues.

In Raabe, R (on the application of) v Secretary of State for the Home Department [2013] EWHC 1736 (Admin) Dr Raabe sought judicial review of the decision to dismiss him on four grounds:

  • that the principles of natural justice were infringed in that he was not given a fair opportunity to answer the charges against him;
  • that the Home Office took into account irrelevant considerations;
  • that the Home Office came to irrational conclusions; and
  • that the decision was unlawful because Dr Raabe had not acted in breach of the terms and conditions of his appointment.

Of particular interest to readers of this blog, Dr Raabe asserted that he had an absolute right to believe that “monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons” and alleged that the decision to revoke his appointment because he held and others published those views was both unlawful and illiberal because pluralism in a modern democratic society depended on persons who did not hold mainstream views being entitled to participate in that society. His claim failed.

The judgment in relation to Article 9

Though Article 9 ECHR was not raised as a specific ground of challenge [para 155], Stadlen J nevertheless referred to it at some length. In his view:

  • Article 9 guaranteed only absolute entitlement to hold religious views: it did not guarantee absolute protection to the manifestation of them [para 155];
  • the disputed article “… could not fairly be called a manifestation of religious beliefs. For instance it is no part of any Christian belief system that gay people are more prone to paedophilia or have a higher incidence of mental illness” [para 155];
  • Article 9 did not create a right to make offensive public statements with impunity simply because they were in some way religiously motivated [para 155];
  • there was a difference between acts that were a manifestation of religious belief and acts which were motivated by it: writing a public political lobbying document which presented itself as “medical opinion” did not fall within the scope of Article 9.1 because it was not a manifestation of religious belief [para 188].

In short:

“Dr Raabe belatedly advanced a submission that a decision to revoke his appointment to the ACMD was irrational and one that was not reasonably open to the Defendant because the effect of the decision was to interfere with his fundamental human right to hold and manifest religious beliefs and the decision failed to satisfy the test of “anxious scrutiny” referred to by the Court of Appeal in Preddy v Bull.[1] I do not accept that submission. Dr Raabe’s Article 9 rights to freedom of religion, including his right to manifest his religion and beliefs, are of course a matter of great importance. However in my judgment the issue of Dr Raabe’s religious beliefs and his right to manifest them is a red herring in this case and I note that it was not advanced as a claim that his Article 9 rights were breached” [para 245].

Comment

Stadlen J noted Lord Hoffmann’s dictum in Begum, R (on the application of) v Denbigh High School [2006] UKHL 15 at para 50 that “Article 9 does not require that one should be allowed to manifest one’s religion at any time and place of ones choosing”. What was not addressed – presumably because, as Stadlen J pointed out, Article 9 was not argued to any great extent – was whether or not Dr Raabe’s subjective belief that “monogamous heterosexual marriage is the form of partnership uniquely intended for full sexual relations between persons” was worthy of protection on Article 9 grounds.

In Eweida & Ors v United Kingdom [2013] ECHR the majority declared that

“In order to count as a ‘manifestation’ within the meaning of Article 9, the act in question must be intimately linked to the religion or belief. An example would be an act of worship or devotion which forms part of the practice of a religion or belief in a generally recognised form. However, the manifestation of religion or belief is not limited to such acts; the existence of a sufficiently close and direct nexus between the act and the underlying belief must be determined on the facts of each case. In particular, there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question” [para 82: emphasis added].

Stadlen J’s judgment in Raabe suggests that, notwithstanding Eweida & Ors, the domestic courts will continue to look critically at the subjective beliefs of individuals. (That said, however, though it is certainly “no part of any Christian belief system that gay people are more prone to paedophilia or have a higher incidence of mental illness”, the attitudes of the mainstream Christian Churches to homosexual relationships continue to range from equivocation to outright rejection.)

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Surprisingly, a quick Google search suggested that the judgment had not been picked up by the media. However, for a considered legal analysis see Alasdair Henderson’s post at UKHRB.



[1] Bull & Bull v Hall & Preddy [2012] EWCA Civ 83 at para 56.

5 thoughts on “Is there an Article 9 right to express illiberal or eccentric views?

  1. Dr Raabe put his name to a rather “dumbed down* paper, i.e. one that was intended to bring some degree of scholarship to a wider audience than just medics and academics. That paper asserted: “there are a disproportionately greater number of homosexuals among paedophiles and there is an overlap between the gay movement and the movement to make paedophilia acceptable”.

    As the general public uses *colloquially* the words “paedophile”, “paedophilia” and “homosexuals” (which is different from the way that scientists tend to use the words, having in mind narrow and precise definitions), both propositions are undoubtedly true, and are strongly evidenced-based. But, they are truths that the authors of the paper were publicising for political reasons at the time, and which it is politically *incorrect* for anybody to publicise ever, in the view of politicians beholden to the gay lobby, which is most of them nowadays.

    Dr Raabe was awarded an honorary position, on a committee that informs the political process, which had been in the gift of a politician, who was probably well aware of Dr Raabe’s politics, churchmanship, research interests and morality. Probably Dr Raabe was appointed in order to enhance the diversity of the committee.

    The said politician promptly confiscated that gift, when others lobbied him *politically*, to do so. The judicial review of a politician’s politically correct, perhaps cowardly, political decision, under pressure from the gay lobby, to confiscate an honorary position on a political committee was always likely to fail.

    The failure of this judicial review does not really answer the question, “Is there an Article 9 right to express illiberal or eccentric views?” Nor is there anything in the facts about “views” that are objectively either illiberal or eccentric

    I would guess (though I am not a lawyer) that if Dr Raabe had instead been able to claim unfair dismissal on the same facts, the tribunal case would have been a great deal more interesting, and might well have gone his way.

    What this case *doesn’t* prove, is that Dr Raabe did anything wrong. The judgment is clear, the politician giveth and the politician taketh away. A political decision to sack somebody from a post like this doesn’t have to right or fair, nor the manner in which the decision is marketed as the victim’s own fault, in order to fail the Wednesbury test for irrationality.

    John Allman
    “The homophobic manifesto”
    JohnAllmanUK.Wordpress.com

  2. This whole affair seems to me bizarre in many respects:

    * As far as I can see, the judgment nowhere explicitly identifies the source of the Minister’s power to dismiss members of the council.

    * So I can only conclude that the power of dismissal is seen as inherent in the power of appointment (which is specified by law, and basically gives the Minister unlimited discretion).

    * The procedures used to appoint candidates in the first place include a question about whether the candidate had done anything embarrassing. No one seems to be suggesting that there is anything unlawful about that.

    * So, equally, it ought to be uncontroversial that a committee member could be legally dismissed for causing embarrassment. (Assuming, as we have done above, that the power of dismissal is inherent in the power of appointment).

    * There are many activities, protected by the ECHR, that could cause embarrassment to the ministry or the committee. These include writing a bad romance novel (Freedom of Expression), joining a religion that believes that humans are descended from aliens (Freedom of Religion), or joining the Monster Raving Loony Party (Freedom of Association).

    * So I’m having a hard time understanding how the ECHR is even engaged here. Why is there a fundamental human right to be a member of an unpaid committee whose only power is to issue advice, that may be freely accepted or rejected?

  3. I would agree with John Allman that the title of this blogpost is misleading. The judgment did not really engage with the question of whether there is “An article 9 right to express illiberal or eccentric views” — indeed there clearly must be a right to express such views (with possible minor exceptions for threats etc.) if the ECHR is to have any substance at all.

    There is not, however, an article 9 right to be a member of an unpaid group of advisors whose appointment is by law put within the discretion of a minister.

    • Sorry if the title is misleading. I thought that the interesting aspect of the case from a law & religion point of view was not the mechanism for appointment and dismissal but the fact that Stadlen J considered whether or not Article 9 was engaged even though (or so it appeared from his judgment) the point was not given any prominence by the claimant.

      And if you’re having a hard time understanding how the ECHR is even engaged here, so did Stadlen J. And so do I.

  4. Pingback: Arya v London Borough of Waltham Forest: is anti-Semitism a “philosophical belief”? | Law & Religion UK

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