Paul Johnson and Silvia Falcetta, of York University’s Sociology Department, have launched the Human Rights in Action project with a view to submitting evidence to the Independent Human Rights Act Review. This was written for the HRiA blog, and is cross-posted with permission.
Religion, the Human Rights Act 1998 and Article 9 ECHR
Largely as a result of the Human Rights Act 1998 making the European Convention on Human Rights directly justiciable in the domestic courts, the past twenty years have seen a decisive shift from a freedom-based approach to what one may or may not do to a rights-based approach – not least because, as Sir Henry Brooke suggested in a speech in September 2000, “our freedom-based laws haven’t always proved very successful in protecting the rights of unpopular minorities”.
As to religion specifically, s.13(1) Human Rights Act obliges the court, when determining any question arising from the right under Article 9 ECHR to freedom of thought, conscience and religion, to “have particular regard to the importance of that right”. But there are three caveats:
- under Article 9(1), the right to hold beliefs (the forum internum) is absolute, but the right to manifest those beliefs (the forum externum) is qualified by Article 9(2);
- to be protected, a religious or philosophical belief must attain “a certain level of cogency, seriousness, cohesion and importance” – see Campbell and Cosans v United Kingdom  ECHR 1 ; and, critically,
- the exercise of the right to manifest religion or belief may come into conflict with the rights of others.
That said, issues of religion and human rights go far beyond the scope of Article 9: the ECtHR has decided cases with a strong religious element under Articles 6, 8, 10, 11 and 12, and Articles 1 and 2 to the First Protocol
Even after the passing of the HRA, the treatment of “religion” by public bodies does not appear to have been wholly consistent: the Charity Commission, for example, refused to register The Pagan Federation and The Temple of the Jedi Order as charities for the advancement of religion in England and Wales but agreed to register The Druid Network. Nevertheless, I would argue that the HRA has had a considerable – and positive – impact on the willingness of the courts to uphold the right to manifest religion in a way that takes due account of the rights of others.
In Eweida & Others v United Kingdom  ECHR 37, the ECtHR made it clear that domestic law on religious discrimination had to be compatible with Article 9 and that, provided a belief met the test of cogency, seriousness, cohesion and importance, the State’s duty of neutrality and impartiality was ‘incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed’ [at para 81]. Further, though not every act in some way inspired, motivated or influenced a belief was a protected ‘manifestation’, an applicant was not obliged to establish that a disputed act was mandated by the religion or belief in question [at para 82]. Ms Eweida’s insistence on wearing a visible cross at work was motivated by her desire to bear witness to her Christian faith and was therefore protected, even though not mandated by her Church [at para 89].
Nevertheless, the right to manifest is not limitless. In the case of Shirley Chaplin – the second applicant in Eweida – her managers at the hospital where she was a nurse had told her that, for health and safety reasons, she could no longer wear a visible crucifix on a neck-chain as an expression of her faith. In Ms Chaplin’s case, the Court held that the protection of health and safety on a hospital ward was ‘inherently of a greater magnitude than that which applied in respect of Ms Eweida’ and it was a field in which the domestic authorities had to be allowed a wide margin of appreciation: “The hospital managers were better placed to make decisions about clinical safety than a court, particularly an international court which has heard no direct evidence” [99: emphasis added].
Possibly the most important domestic ruling on religious rights since 1998 has been R (Hodkin & Anor) v Registrar General of Births, Deaths and Marriages  UKSC 77.
Some fifty years ago, in R v Registrar General, ex parte Segerdal  2 QB 697, Lord Denning MR had characterised a ‘place of meeting for religious worship’ under s.2 Places of Worship Registration Act 1855 as a place where “people come together as a congregation or assembly to do reverence to God. It need not be the God which the Christians worship. It may be another God, or an unknown God, but it must be reverence to a deity” – though he did go on to make an exception for Buddhists. Further, in 1999, the Charity Commission had rejected an application from the Church of Scientology for registration as a charity.
In Hodkin, however, the Supreme Court overturned the Court of Appeal’s judgment in Segerdal – by which the lower courts had, however reluctantly, regarded themselves as bound. The Supreme Court held that the Church of Scientology’s London chapel satisfied the conditions of the 1855 Act and directed the Registrar General to register it for solemnizing marriages. In doing so, Lord Toulson observed, obiter [at 32], that ‘Religion and English law meet today at various points … Individuals have a right to freedom of thought, conscience and religion under article 9 of the European Convention. They enjoy the right not to be discriminated against on grounds of religion or belief under EU Council Directive 2000/78/EC and under domestic equality legislation’.
In Segerdal, Lord Denning MR had said that he was sure that his conclusion “would be the meaning attached by those who framed this legislation of 1855”. Which was no doubt true: however, he was ruling on the case in 1970 and, by then, both the religious makeup of society and our understanding of “religion” had moved on. Furthermore, despite the fact that the UK had accepted the jurisdiction of the ECtHR and the right of individual petition in 1966, in Segerdal the Court had made no mention of Convention rights whatsoever.
In Hodkin, however, the Supreme Court changed that decisively, substituting a rights-based, inclusive view of ‘religion’ for one that had been essentially Judaeo-Christian. Lord Toulson offered a “description” of “religion” [at 57] which would include Scientology, and which followed the Strasbourg judgment in Eweida. Perhaps surprisingly, he also concluded [at 65] that it was “unnecessary” to consider the appellants’ arguments under the Equality Act 2010 and the ECHR. The reason for that conclusion, I would suggest, is this: by 2013, the Act had been in force for 13 years, Convention rights were a well-understood part of the domestic legal system – simply part of the furniture – and the domestic courts took them into account as a matter of course.
Lord Toulson’s “description” notwithstanding, however, the full effects of Hodkin have yet to be seen; and the problem remains that there has been no overall working definition of ‘religion’ applying universally and consistently across the board for such purposes as charitable status, the law of trusts, tax law and employment rights. So if, for example, the Church of Scientology were to reapply to the Charity Commission for registration, what would be the outcome? Answer: we just do not know. Hodkin decided that Scientology was a “religion” – but would that satisfy the Commission for the purposes of demonstrating public benefit under s.4 Charities Act 2011?
Holding Parliament and Government to account
I am not sure that relations between the Legislature, the Executive and the Judiciary are a major issue in relation to religion, but if they are in fact an issue, I would argue that the Westminster Parliament and the UK Government are under the same duty as any other public body to observe the terms of the HRA and Convention rights – because they are the law.
It can be all too easy for policymakers to prefer administrative convenience over wider human rights considerations. In O’Donoghue & Ors v United Kingdom  ECHR 1574, for example, from 2005 onwards a Home Office Scheme aimed at preventing sham marriages had required immigrants without settled status to apply for a Certificate of Approval to marry – the only exceptions being EEA nationals and those who were to marry according to the rites of the Church of England. The Roman Catholic applicants before the ECtHR, one of whom was Nigerian, lived in Northern Ireland where, as the Court rather drily observed [at 2], “There is no Church of England”. The Scheme was held to breach Article 12 (right to marry) and Article 14 (discrimination) taken with Articles 12 and 9: the UK Government subsequently abolished it.
Conclusion: religion and the duty ‘take into account’ the jurisprudence of the ECtHR
While still President of the Supreme Court, Lady Hale suggested in an interview [posted in July 2017] that the HRA had enabled the courts to analyse issues differently from the way in which they had done so previously:
“[T]he non-discrimination cases in Employment Tribunals were not analysed in terms of Article 9 as well as in terms of the non-discrimination laws. As a result, Christians felt that they were discriminated against because they weren’t successful in court: rules that forbade them to wear crosses and other symbols of Christianity were upheld, whereas bans on Islamic headscarves and Sikh turbans and bangles were held to require justification. It was a very good thing when the HRA came along and particularly when those cases went to Strasbourg and Strasbourg said [in Eweida] ‘yes, you have a right to manifest your religion, wearing a cross is a manifestation of your Christian religion, therefore, it can’t be prohibited without a good reason’ and so courts and tribunals had to look whether there was a good enough reason to prohibit it. The fact that it is not a core requirement of the religion did not matter.”
In practice, the day-to-day impact of the HRA is not primarily on relations between citizens and Government but between citizens and citizens and, as Lady Hale observed, the area in which it has had the most influence as regards religion is employment law. Without it, would an Employment Tribunal have held, as in Holland v Angel Supermarket Ltd & Anor  UKET 3301005 2013, that a Wiccan sacked after her employers had made deeply insulting comments about her religion had been unfairly dismissed? Or would the Royal Navy have given one of its ratings permission to celebrate the rites of the Church of Satan aboard ship, then four years later promoted him to chief petty officer? I don’t think so.
On the other hand, in Mba v London Borough of Merton  UKEAT 0332 12 1312, when a devoutly-Christian care-worker in a children’s home was told that she must work on Sundays in accordance with her contract of employment after some two years of avoiding doing so and claimed that the change would interfere with her attending church, an Employment Tribunal decided that her employer’s aim of ensuring that all full-time staff worked on Sundays in rotation was legitimate and objectively justified.
Lady Hale’s comments would appear to support the view that the obligation on the domestic courts to “take into account” judgments of the ECtHR has not been a major contributory factor to the difficulties that have sometimes arisen. Her overall conclusion was that the HRA “has improved the law, I think. So, yes, religion is a good example of improvement.”
I cannot disagree.