Human rights- Article 9 PDF

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Freedom of Religion Dr Kirsty Hughes updated by Dr. S. Palmer These lectures examine Article 9 ECHR. There are a number of aims of these lectures: (i) provide you with an introduction to freedom of religion in the UK; (ii) provide a framework for understanding the structure of Article 9 ECHR and the key jurisprudential tools used by the Court; (iii) focus on the relationship between secularism and freedom of religion; (iv) examine the role of Article 9 ECHR in family law cases; (v) examine the role of Article 9 ECHR in immigration cases; (vi) identification of central questions and themes. Important cases are highlighted with a ** or a * and are listed separately at the end of the handout for your convenience.

Outline of what we will cover (1)

Overview of the legal framework of freedom of religion in the UK (a) The Human Rights Act (b) The European Convention on Human Rights (c) The Equality Act 2010 (c) Directive 2000/78

(2) The Article 9 ECHR Right to Hold a Belief (3) The Article 9 ECHR Right to Manifest a Belief (a) Clothing (b) Secularism (c) Conflicts with other Rights (4) Secularism (a) What is it? (b) Influence of religion and secularism on UK Law (c) Secularism in the Article 9 ECHR case law i. Cases reflecting a conception of secularism closer to laïcité ii. Cases reflecting a conception of secularism closer to neutral pluralism (5) Article 9 and Families (a) Contentious religious beliefs and family proceedings (b) Religious upbringing of children (6) Article 9 and Immigration (a) Religious persecution and deportation (b) Expulsion and freedom of religion 1

INTRODUCTION (1) Overview of the legal framework of freedom of religion in the UK The main legal instrument protecting the right to freedom of religion in the UK is the Human Right Act 1998 which incorporates into domestic law Article 9 ECHR on freedom of thought, conscience and religion. Freedom of religion is however also protected from encroachment by acts of private parties through the Equality Act 2010 (implementing EU Directive 2000/78) which prohibits discrimination by public and private employers, providers of goods and services, and others, on the basis of religion or belief. Human Rights Act 1998 **  Incorporates ECHR into domestic law, including Article 9 on freedom of thought, conscience and religion.  Section 13 HRA asks courts to ‘have particular regard to the importance’ of freedom of religion when deciding cases that may have an impact on the exercise of the right. Consider Mr KH v Secretary of State for the Home Department [2016] UKUT 286 (IAC), [22-27], on how section 13 is distinct from Article 9 ECHR (s.13 is an independent provision of domestic law from the Convention right). ECHR**    

Article 9 protects freedom of thought conscience and religion. Article 14 prohibits discrimination in the enjoyment of Convention Rights on the basis of religion. Article 2 of Protocol 1 protects the right of parents to educate their children in accordance with their religious and philosophical convictions. Article 1 of Protocol 12 prohibits discrimination on the basis of religion by legal acts or acts of public authorities.

Equality Act 2010  Religion or belief listed as protected characteristics in sec 4.  The Equality Act prohibits discrimination in employment, provision of public services and education on the basis of protected characteristics.  Implements EU Dir 2000/78  Equality Act does not apply in Northern Ireland. See instead the Fair Employment and Treatment (Northern Ireland) Order 1998.

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A religious discrimination issue considered under the Equality Act will probably also engage an Article 9 ECHR issue. See Ladele v Islington London Borough Council [2009] EWCA Civ 1357, [2010] 1 WLR 955, [54-61]. R (On the application of Haq) v Walsall MBC (2019) EWHC 70 (Admin). Furthermore, equality legislation has to be interpreted in light of Article 9 ECHR. See MBA v London Borough of Merton EAT 13 / 12 / 2012, [2013] Eq LR 209 and *R. (on the application of Hussein) v Secretary of State for the Home Department [2018] EWHC 213 (Admin). The lock-in regime at an immigration removal centre, under which practising Muslims who wished to adhere to mandatory prayer times had to do so in their rooms, in the presence of other detainees and close to an unclosed lavatory, breached ECHR art.9 and constituted indirect discrimination under the Equality Act 2010 s.19, which was not justified.  EU Council Directive 2000/78/EC: implemented in Equality Act 2010  Prohibits discrimination in employment and occupation on the basis of religion or belief. Only two cases have been decided on religious discrimination by the CJEU (Achbita (2017) and Bougnaoui (2017)). Consider the note on these cases by Zoe Adams and John Adenitire, ‘Ideological Neutrality in the Workplace’, (2018) 81 Modern Law Review 348-360. (2) The Article 9 ECHR Right to Hold a Belief Article 9 ECHR protects the right to hold religious or non-religious beliefs. The right to hold a belief is absolute. Only the right to hold a belief (whether religious or not), as opposed to manifest a belief, is an absolute right. As soon as the right to manifest a belief is invoked, not all beliefs are protected (they have to meet the test set out in Williamson (2005) (see below)). The European Commission on Human Rights and the ECtHR have explicitly or implicitly acknowledged that the safeguards of Article 9 ECHR apply to: (a) the major world religions, such as:

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– The different Christian denominations (among many other authorities Savez Crkava Rijec Zivota v Croatia (7798/08) (2012) 54 E.H.R.R. 36); – Islam (Sahin v Turkey (2007) 44 E.H.R.R. 5); – various forms of Hinduism (Kovaļkovs v. Latvia ( 35021/05) (2012)); – Buddhism (Jakóbski v. Poland (2012) 55 E.H.R.R. 8); – Judaism (Cha’are Shalom Ve Tsedek v. France [GC] ; Francesco Sessa v. Italy,); (b) new or relatively new religions such as: – Mormonism, or the Church of Jesus Christ of Latter-Day Saints (The Church of Jesus Christ of Latter-day Saints v. the United Kingdom); – Neo-Paganism (Ásatrúarfélagið v. Iceland (dec.)); – the Jehovah’s Witnesses (Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria ; Jehovah’s Witnesses of Moscow and Others v. Russia); – the Bhagwan Shree Rajneesh movement, known as Osho movement (Leela Förderkreis e.V. and Others v. Germany; Mockute v. Lithuania, § 121) – the Reverend Sun Myung Moon’s Unification Church (Nolan and K. v. Russia; Boychev and Others v. Bulgaria)

(c) various coherent convictions, such as:

and

sincerely-held

philosophical

– pacifism (Arrowsmith v. the United Kingdom, § 69); – principled opposition to military service (Bayatyan v. Armenia [GC]); – veganism and opposition to the manipulation of products of animal origin or tested on animals (W. v. the United Kingdom (dec.)); – opposition to abortion (Knudsen v. Norway (dec.), no. 11045/84, Commission decision of 8 March 1985, DR 42, p. 258; Van Schijndel and Others v. the Netherlands, (dec.)); A state cannot interfere with the absolute right to hold a belief, for instance by dictating what a person believes or taking coercive steps to make him change his beliefs. This was tested in Ivanova v Bulgaria (2008) 47 E.H.R.R. 54. In that case Bulgarian authorities had pressurised a school employee to renounce her religion (she was a member of ‘Word of Life’, a Christian Evangelical group non registered in Bulgaria. The school also eventually dismissed her on the basis of her religious beliefs with the pretext that she was no 4

longer qualified for her post. The Court, at [79], set out the following general principle in relation to the right to hold a belief. There was a breach of Article 9 here. Unlike the second paragraphs of Arts 8, 10 and 11 of the Convention, which cover all the rights mentioned in the first paragraphs of those Articles, that of Art.9 of the Convention refers only to “freedom to manifest one's religion or belief”. In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone's beliefs are respected. At the same time, it emphasises the primary importance of the right to freedom of thought, conscience and religion and the fact that a state cannot dictate what a person believes or take coercive steps to make him change his beliefs. The Court then went on to find, at [84] that (…) Most telling in this respect is the meeting of November 2, 1995 at which the applicant was pressured by two government officials to renounce her religious beliefs in order to keep her job, which the Court considers a flagrant violation of her right to freedom of religion guaranteed under Art.9 of the Convention. (3)

The Article 9 ECHR Right to Manifest a Belief?

The wide scope of beliefs protected under Article 9 ECHR was established by the UKHL in *R (on the application of Williamson) v Secretary of State for Education and Employment [2005] UKHL 15 (UKHL). The case concerned parents claiming infringement of religious freedom on the basis that UK legislation prohibited corporal punishment of school children. They wanted to send their kids in the school where corporal punishment is fine. The case failed on the basis that the rights of children needed to be safeguarded. There was some dispute as to whether the parents’ beliefs were religious in nature. Question: is corporal punishment religious belief. The House of Lords considered this irrelevant. The right to manifest belief in Article 9 covers both religious and non-religious beliefs. It said, at [24], Article 9 embraces freedom of thought, conscience and religion. The atheist, the agnostic, and the sceptic are as much entitled to freedom to hold and manifest their beliefs as the theist. These beliefs are placed on an equal footing for the purpose of this guaranteed freedom. Thus, if its manifestation is to attract

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protection under article 9 a non-religious belief, as much as a religious belief, must satisfy the modest threshold requirements implicit in this article. In particular, 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. Not all beliefs, whether religious or non-religious, are protected by Article 9 ECHR if they are to be manifested (as opposed to only being held). Protected beliefs have to satisfy the requirements set out in Williamson, at [23], as follows: Everyone (…) is entitled to hold whatever beliefs he wishes. But when questions of ‘manifestation’ arise (…) a belief must satisfy some modest, objective minimum requirements. (…) The belief must be consistent with basic standards of human dignity or integrity. Manifestation of a religious belief, for instance, which involved subjecting others to torture or inhuman punishment would not qualify for protection. The belief must relate to matters more than merely trivial. It must possess an adequate degree of seriousness and importance. As has been said, it must be a belief on a fundamental problem. With religious belief this requisite is readily satisfied. 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. Nor are an individual's beliefs fixed and static. The beliefs of every individual are prone to change over his lifetime. Overall, these threshold requirements should not be set at a level which would deprive minority beliefs of the protection they are intended to have under the Convention (…). Thus in Williamson (2005) the House of Lords made it clear that to be protected a manifestation of a belief must 1. Relate to a protected belief (see section (2(B)) above); 2. Be intimately linked to the belief itself; See Arrowsmith v United Kingdom (1981) 3 EHRR 218 (EComHR). In that case the applicant, a pacifist distributing non-pacifist leaflets, distributed leaflets to soldiers being posted to Northern Ireland urging them to desert. The leaflets themselves, in the EComHR’s view, did not advocate for pacifism generally but only

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advocated soldiers to go absent without leave, or openly to refuse to be posted to Northern Ireland. Therefore the EComHR rejected the applicant’s claim that by distributing the leaflets she was manifesting a belief protected by Article 9. This was because, even though pacifism was protected by Article 9, the distribution of leaflets not considered to be pacifists could not be a manifestation of pacifism. The right to manifest belief- not absolute. It was held in Williamson that it was a manifestation of a parent's beliefs when they authorised a child's school to administer corporal punishment, and as such engaged the Convention. The legislation interfered materially with parental rights under Article 9 ECHR, however the interference was "necessary in a democratic society...for the protection of the rights and freedoms of others".

See also Grainger plc and others v Nicholson (UKEAT/219/09) [2010] ICR 360. This case sets outs, at [24], the requirements which a non-religious belief must satisfy in order to be protected under anti-discrimination legislation (e.g. Equality Act): (i) The belief must be genuinely held. (ii) It must be a belief and not (…) an opinion or viewpoint based on the present state of information available. (iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour. (iv) It must attain a certain level of cogency, seriousness, cohesion and importance. (v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others’. Grainger has been followed in many cases by higher courts including   

Maistry v BBC [2014] EWCA Civ 1116. ‘BBC Values’ a protected belief. Henderson v The General Municipal and Boilermakers Union [2016] EWCA Civ 1049. ‘Left-wing socialism’ a protected belief. To be protected there must be a belief and not an opinion or viewpoint based on present state information. See McClintock v Department of Constitutional Affairs [2008] IRLR 29. Justice of the Peace not willing to hear cases involving same-sex parents adopting children on the basis that there was not sufficient scientific information whether growing up with same-sex couples was in the child’s best interest. Article 9 ECHR claim failed because

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his objection was not based on a protected belief but only an opinion. The right to manifest a religion or belief is explicitly a qualified right under Article 9(2) ECHR which states: 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. A state may thus legitimately interfere with a manifestation of belief if the interference 1. is prescribed by law; 2. pursues a legitimate aim (public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others); and 3. if the means chosen to achieve the aim are necessary and not disproportionate in their adverse impact on the believer. A good example of the application of proportionality is in *Regina (Adath Yisroel Burial Society and another) v Inner North London Senior Coroner [2018] EWHC 969 (Admin). The dispute was over the coroner’s policy of not prioritising any death because of the religion of the deceased or family. The effect of this policy was that no priority was given to followers of the Jewish faith, or any other faith, where is an important principle that the funeral of a deceased person should take place as soon as possible, ideally on the day of death itself. This also underlines the point that what article 9 requires is not that there should be any favouritism, whether in favour of religious belief in general or in favour of any particular religious faith, but that there should be a fair balance struck between the rights and interests of different people in society. The fundamental flaw in the present policy adopted by the defendant is that it fails to strike any balance at all, let alone a fair balance. [107] The manifestation of belief has been particularly controversial in the context of religious clothing and conscientious objection. Both are considered in turn. (a)

Clothing

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*Begum, R (on the application of) v Denbigh High School [2006] UKHL 15 (UKHL). Muslim schoolgirl claiming infringement of religious freedom for not being allowed to wear a jilbab at school. The claim failed on the basis that there was no interference with her freedom of religion. The House of Lords held that there is no interference if it can be said that -

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the claimant has voluntarily accepted a role which gives rise to an obligation which conflicts with her beliefs (e.g. freely chose the school);. and there are other means open to the claimant to manifest her beliefs outside of the role without undue hardship or inconvenience (e.g. she could have easily changed school).

This is no longer good law since the ECtHR decision in **Eweida v United Kingdom (2013) 57 EHRR 8 This case considered four separate applicants. The first two, Eweida and Chaplin, respectively an air hostess and a nurse, wanted to wear a crucifix while working, respectively with British Airways and with an NHS Trust, in contravention of their employers’ dress code policies. The ECtHR found that BA’s refusal to allow Eweida to wear the crucifix was disproportionate, especially given that BA had eventually changed its stance and allowed Eweida to wear the crucifix a few months after her initial complaint. However, it was justified to refuse to allow Ms Chaplin to wear her crucifix at work because of the health risk it might pose to patients (e.g. it might come into contact with open wounds, etc.). The case is also very important because it effectively reversed the Begum decision. The Court acknowledged the well-established jurisprudence by saying that 83. It is true, as the Government point out and as Lord Bingham observed in R (Begum) v. Governors of Denbigh High School case (…), that there is case-law of the Court and Commission which indicates that, if a person is able to take steps to circumvent a limitation placed on his or her freedom to manifest religion or belief, there is no interference with the right under Article 9 § 1 and the limitation does not therefore require to be justified under Article 9 § 2. However, the Court then went on to reverse this well settled case law in a fundamental paragraph which reads Given the importance in a democratic society of freedom of religion, the Court considers that, where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right,

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the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate. Consider also the landmark case of **SAS v France (2015) 60 E.H.R.R. 11. The applicant, a French Muslim woman, complained that the French prohibition of face covering in public (with the exception of places of worship) violated her religious freedom by not allowing her to wear the burqa. SAS said that she wore the burqa and niqab, which covered her whole body except for her...