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THE PROTECTIONS FOR RELIGIOUS

RIGHTS Law and Practice

Sir James Dingemans One of Her Majesty’s Judges of the Queen’s Bench Division

Can Yeginsu Barrister, 4 New Square

Tom   Cross Barrister, 11KBW

Hafsah   Masood Barrister, 3 Hare Court

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Great Clarendon Street, Oxford, OX2 6DP,

United Kingdom

Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship,

and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries

© James Dingemans, Tom Cross, Can Yeginsu and Hafsah Masood, 2013

Th e moral rights of the authors have been asserted

First edition published in 2013 Impression: 1

All rights reserved. No part of this publication may be reproduced, stored ina retrieval system, or transmitted, in any form or by any means, without the

prior permission in writing of Oxford University Press, or as expressly permittedby law, by licence, or under terms agreed with the appropriate reprographics

rights organization. Enquiries concerning reproduction outside the scope of theabove should be sent to the Rights Department, Oxford University Press, at the

address above

You must not circulate this work in any other formand you must impose this same condition on any acquirer

Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI

and the Queen’s Printer for Scotland

Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America

British Library Cataloguing in Publication DataData available

Library of Congress Control Number: 2013940572

ISBN 978–0–19–966096–4

Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY

Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials

contained in any third party website referenced in this work.

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FOREWORD

Th is is an important work on what is, somewhat strange to say, essentially a new subject to English law. Sir James Dingemans and his co-authors have performed a service to all those who are interested in the fi eld of law and religion. Th ey have created, in one substantial vol-ume, a restatement, in the form of a critical treatise, of the current law in twenty-fi rst century Britain on the protections for religious rights. More than that, they have set their restatement in its necessary international context.

Th us, after an introductory chapter, in which some of the critical issues of the subject in the modern world are highlighted, and a whirlwind but fascinating sketch of the history of English law and religious rights is given, the authors turn in their next few chapters to dis-cuss the modern international and European setting for the standards which operate in this fi eld. Both in terms of the standards emerging from the United Nations, and in terms of the teaching of the European Convention on Human Rights, it is perhaps noticeable that this modern setting derives almost entirely from the catastrophe of the relatively recent period of the Holocaust. It is noticeable, however, that despite that circumstance, the dominant court in this fi eld, namely the European Court of Human Rights sitting in Strasbourg, has—at any rate until very recently, I have in mind cases such as Lautsi v Italy (2012) and Eweida v United Kingdom (2013)—on the whole given only at most lukewarm support to the protection of religious rights to be found in the Convention’s Article 9.

In the past, at least in Britain and in Europe, the relevant law was mainly concerned with the entrenchment of the dominant religion and the disabilities of other religions. Increasingly, however, in the modern, more secular and pluralist, world, the law has adopted a more neu-tral role. Perceptively, the authors point out that ‘neutral’ may be a better word than ‘secular’ to describe the attitude of the law and the courts which are called on to apply it. In that, however, the authors may be speaking as it should be, rather than as it is.

Before turning to domestic law, in a major chapter called ‘Comparative Perspectives’, the authors have co-opted a team of distinguished scholars to write about the law as found and practised in other parts of the world, mainly in other common law jurisdictions, but also in Turkey. In this respect, it may be observed that the United States (also included in this survey), because of its First Amendment’s prohibition on the free exercise of religion and its tradition of separation of church and state, has one of the oldest, richest, and most refi ned jurisprudence on the subject to be found anywhere in the world. In a fi eld in which it is necessary to have as broad a view of the subject as possible, this chapter sets a benchmark for a work of this kind in its provision of valuable insights into the relevant law across major parts of the globe.

It is against this background that the authors turn their attention to the domestic scene. Th ere are chapters on the Human Rights Act 1998 and on the Equality Act 2010. In the latter case, as the authors observe, the most important protections for religious rights are to be found, almost perversely, in the exceptions to the discrimination provisions for protected character-istics. Th e diffi culties created by the tension between equality and non-discrimination law, on the one hand, and legal protection for religious rights on the other, are well demonstrated in

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the unhappy decision in the Jewish Free School case, where even the majority in the Supreme Court are to be found wringing their hands at their conclusion.

Having set out the statutory background, the authors then adopt a functional approach to their remaining chapters, which helpfully cover such discrete areas as services and pub-lic functions, employment, education, religious expression, and the family. Th ere are also appendices which contain within them much of the relevant statutory and constitutional texts not only from Britain but also from around the world.

Th is is a diffi cult and developing area of the law, and, for Britain, with its unwritten constitu-tion and (prior to the Human Rights Act) quiescent common law, a relatively new one. It still remains to be seen how the traditional British virtues of democratic pluralism and tolerance will work out the tensions created by a new era in which religious fundamentalism poses grave risks to social cohesion and world peace. Sometimes the law is needed to protect and mediate between religious and other freedoms, or to assist real victims. Often, however, the law is used, not always successfully, due to the intractable nature of the problems, by litigants whose main interest is to espouse an extreme point of view. In such circumstances, much jurisprudence in the fi eld has sought, in my respectful view wrongly, to fi nd instant and artifi cial tests to eliminate proper enquiry. However, it is rather in the tools of justifi cation, proportionality, and reasonable accommodation that a way forward can be provided. As it has been said, ‘Come, let us reason together’ 1 (Isaiah 1:18).

Th is is an important modern work on an age-old problem which is becoming increasingly topical in its legal perspectives. I congratulate the authors on its production and wish it the success which it deserves.

Sir Bernard Rix August 2013

1 Th e Holy Bible, King James Version . New York: Oxford Edition: 1769; King James Bible Online , 2008. <http://www.kingjamesbibleonline.org/>.

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CONTENTS

Table of Cases xvi Table of Legislation xxxviii List of Abbreviations lx

1. Introduction

A. Preamble 1.01 B. A Short History of English Law and Religious Rights 1.12

(1) Medieval England 1.12 (2) Th e English Reformation and establishment of the Church of England 1.19 (3) Th e dismantling of restrictions on religious freedom 1.32 (4) Religious freedom in the twentieth and twenty-fi rst centuries 1.41 (5) Th e position of the Church of England in the twenty-fi rst century 1.53

I INTERNATIONAL STANDARDS AND PROTECTIONS

2. Th e United Nations Standards and Protections

A. Introduction 2.01 (1) Th e importance of international law in the protection of religious rights 2.01 (2) Th e role of international law in domestic courts 2.05 (3) Th e UN framework of protection for religious rights 2.07

B. Universal Declaration of Human Rights 1948 2.09 (1) An important reference point for the protection of religious rights 2.09 (2) Article 18 2.11 (3) Indirect protections 2.24

C. International Covenant on Civil and Political Rights 1966 2.26 (1) Th e framework of protection 2.26 (2) Substantive protections: Article 18 and General Comment 22 2.31 (3) Substantive protections: Article 27 and indirect protections 2.76 (4) Practice and procedure 2.84

D. UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981 2.112

E. UN Special Rapporteur on Freedom of Religion or Belief 2.126 (1) Th e mandate 2.127 (2) Working methods 2.129

F. UN Convention on the Rights of the Child 1989 2.137 (1) Article 14(1) 2.140 (2) Article 14(2) 2.149 (3) Article 14(3) 2.154 (4) Related provisions 2.157

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3. Th e European Standards and Protections

A. Th e European Convention on Human Rights 3.01 (1) Introduction 3.01 (2) Article 9 ECHR: an overview 3.02 (3) When is Article 9 engaged? 3.10 (4) Has there been an interference with Article 9 rights? 3.45 (5) Is the interference justifi ed under Article 9(2)? 3.72 (6) Article 14 ECHR 3.115 (7) Bringing an ECHR claim: procedure and remedies 3.134

B. Religious Rights in the Context of the European Union 3.162 (1) Introduction 3.162 (2) Overview: fundamental rights within the EU framework 3.164 (3) Religion in European law: provisions and substantive principles 3.172 (4) Religion in European law: practical principles 3.187

4. Comparative Perspectives

A. Australia (Paul Babie) 4.01 (1) Introduction 4.01 (2) Protecting religious freedom 4.03 (3) Th e principal Australian contexts in which religious rights arise 4.31 (4) Conclusion 4.60

B. Canada (Howard Kislowicz) 4.61 (1) Main provisions and brief historical perspective 4.61 (2) Key constitutional and statutory materials 4.64 (3) Leading cases 4.67

C. India (Mara Malagodi) 4.122 (1) Introduction 4.122 (2) Background 4.123 (3) Th e constitutional framework 4.129 (4) Key constitutional provisions, statutes, and case law 4.136 (5) Conclusions 4.175

D. New Zealand (Saeeda Verrall) 4.176 (1) Introduction 4.176 (2) New Zealand’s religious landscape at a glance 4.179 (3) Legislation relating to religious rights and freedoms 4.184 (4) Jurisprudence considering religious rights 4.207 (5) Conclusions 4.247

E. Northern Ireland (Claire Archbold) 4.253 (1) Constitutional law 4.253 (2) Human rights 4.260 (3) Discrimination law 4.270 (4) Education 4.277 (5) Family Law 4.283 (6) Wills, trusts, and property law 4.292 (7) Charities 4.298 (8) Planning 4.299 (9) Criminal law 4.300

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F. Republic of Ireland (James Anderson and Claire Archbold) 4.306 (1) Constitutional law 4.306 (2) Human Rights 4.323 (3) Criminal law 4.328 (4) Family law 4.334 (5) Education law 4.343 (6) Employment and discrimination law 4.359 (7) Charity law 4.369

G. South Africa (Waheeda Amien) 4.370 (1) Introduction 4.370 (2) Constitutional provisions 4.372 (3) Jurisprudence 4.382 (4) Main principles emerging from the case law 4.401 (5) Conclusion 4.414

H. Turkey (Mine Yildirim) 4.416 (1) General framework 4.418 (2) Th e constitutional protection of freedom of religion or belief: article 24 4.430 (3) Th e approach of the higher courts to religious rights 4.440

I. United States (Nicholas Hatzis) 4.469 (1) Th e First Amendment 4.469 (2) Direct interference with freedom of religion 4.475 (3) Indirect interference with freedom of religion 4.484

II DOMESTIC PROTECTIONS

5. Th e Human Rights Act 1998

A. Introduction 5.01 B. Article 9 5.06

(1) Religion or belief 5.07 (2) Manifestation of belief 5.11 (3) Interference 5.14 (4) Justifi cation 5.19 (5) Article 9 in combination with Article 14 5.24 (6) Section 13 HRA 1998 5.28

C. Remedies 5.32 (1) Available remedies and jurisdiction 5.32 (2) Sections 3 and 4 HRA 1998 5.34 (3) Damages 5.42 (4) Prerogative orders 5.49 (5) Declarations and injunctions 5.53 (6) Remedies in criminal proceedings 5.55

D. Procedure 5.57 (1) Introduction 5.57 (2) HRA-based judicial review 5.62 (3) Free-standing claims 5.75 (4) Other legal proceedings 5.83

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6. Th e Equality Act 2010

A. Introduction 6.01 B. Background 6.05 C. Protected Characteristics 6.14

(1) Religion or belief 6.15 (2) Race 6.46

D. Prohibited Conduct 6.53 (1) Direct discrimination 6.55 (2) Indirect discrimination 6.71 (3) Harassment 6.94 (4) Victimization 6.101

E. Exceptions 6.106 (1) Employment 6.107 (2) Services and public functions, premises and associations 6.109 (3) Services and public functions—specifi c exemptions from section 29 6.114

F. Advancement of Equality 6.117 (1) Public sector equality duty 6.118 (2) Positive action 6.130

G. Procedure and Remedies 6.137 (1) Proceedings in the county court 6.139 (2) Proceedings in the employment tribunal 6.145 (3) Transitional provisions 6.152

7. Services and Public Functions, Premises, Associations

A. Introduction 7.01 B. Legislative History 7.03 C. Who and What is Protected? 7.06

(1) Provision of services and public functions 7.07 (2) Premises 7.29 (3) Associations 7.40 (4) Th e ‘religious organisations’ exception 7.57

D. Procedure and Remedies 7.63

8. Religion and Employment

A. Introduction 8.01 B. Discrimination Law 8.06

(1) Introduction 8.06 (2) Legislative history 8.11 (3) Who and what is protected? 8.23

C. Unfair Dismissal and Other Protections 8.46 (1) Unfair dismissal 8.46 (2) Human rights law 8.54 (3) Protections under the School Standards and Framework Act 1998 8.64

D. Time Off for Religious Observance 8.74 (1) Sunday working for shop workers 8.75 (2) Other requests for time off work 8.83

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E. Religious Symbols and Dress 8.96 (1) Th e ECHR 8.97 (2) Discrimination law 8.108

F. Refusal of Work Tasks 8.123 (1) Conscientious objection clauses 8.124 (2) Work tasks and beliefs concerning same-sex couples 8.132

G. Expression of Religious Views in the Workplace 8.145 H. Religious Rights of Employers 8.154

(1) Exceptions under the Equality Act 2010 8.154 (2) Th e School Standards and Framework Act 1998 8.189 (3) Protections under the ECHR 8.199

I. Procedure and Remedies 8.204 (1) Discrimination claims 8.204 (2) Claims for unfair dismissal 8.216

9. Religion and Education

A. Introduction 9.01 (1) Overview of this chapter 9.01 (2) Key legal sources 9.03

B. Educational Provision in the United Kingdom 9.12 (1) Th e basic types of school 9.12 (2) Faith schools 9.19 (3) Academies 9.30

C. Teaching and Content 9.35 (1) Religious education and collective worship 9.37 (2) Sex education 9.53 (3) Corporal punishment 9.59 (4) Absence from school for religious holidays, festivals, and pilgrimages 9.64

D. Discrimination in Education 9.68 (1) Discrimination by schools 9.69 (2) Discrimination in the exercise of public functions 9.71 (3) School transport 9.72

E. Admissions 9.76 (1) Overview of admissions law 9.77 (2) Faith-based admissions criteria 9.83 (3) Preferences for schools based on religion or belief 9.92

F. Dress and Symbols in Schools 9.97 (1) School uniform and religious dress 9.98 (2) Religious symbols in schools 9.117

10. Religious Expression and Toleration

A. Introduction 10.01 B. Blasphemy 10.02

(1) Origins 10.04 (2) Application and development in the twentieth and twenty-fi rst centuries 10.06 (3) Abolition 10.14

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C. Religious Hatred and Other Public Order Off ences 10.17 (1) Religious hatred off ences 10.19 (2) Hatred against persons on grounds of sexual orientation 10.31 (3) Other public order off ences and the ECHR 10.35 (4) Jurisprudence of the ECtHR 10.62

D. Toleration and Conscientious Objection 10.69 (1) Toleration in statute 10.69 (2) Conscientious objection 10.74

11. Religion and the Family

A. Marriage 11.01 (1) Introduction 11.01 (2) Th e Marriage Act and religious marriages 11.03 (3) Marriage is not a manifestation of religious belief 11.08

B. Civil Partnership 11.13 (1) Introduction 11.13 (2) Religious premises: the changes brought in by the Equality Act 2010 11.16

C. Divorce 11.22 (1) Introduction 11.22 (2) Th e relationship between civil and religious termination of marriages 11.25 (3) Section 10A of the Matrimonial Causes Act 1973 11.28 (4) Alternative dispute resolution with religious bodies 11.31

D. Upbringing of Children 11.38 (1) Introduction 11.38 (2) Private law cases 11.46 (3) Public law cases 11.54

12. Protections for Religious Rights in Other Areas

A. Places of Worship 12.01 (1) Introduction 12.01 (2) Ratings exemption 12.03 (3) Solemnization of marriages 12.05 (4) Ecclesiastical Courts Jurisdiction Act 1860 12.06

B. Church Courts 12.07 C. Rituals, Burials, and Ceremonies 12.12

(1) Introduction 12.12 (2) Common law rights of burial 12.13 (3) Funerary rites of other religions 12.15

D. Criminal Law 12.22 E. Planning and the Environment 12.27

(1) Introduction 12.27 (2) Planning decisions/material considerations 12.29 (3) Planning and Article 9 ECHR 12.38 (4) Planning and the public sector equality duty 12.43

F. Charitable Status 12.47 G. Prisons 12.61 H. Animal Slaughter 12.65

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Appendix I: United Nations Standards and Protections 515 Appendix II: European Standards and Protections 519 Appendix III: Domestic Standards and Protections 521 Appendix IV: Constitutional Protections Around the World 535

Index 543

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