Law and religion round-up – 10th December

The usual mix of news that seemed to be important and stuff that simply caught our eye…

Future progress on Brexit

Possibly the most important news of the week – though it impacts on “religion” only tangentially (unless you’re the bishop of four dioceses that straddle the Irish border, in which case it impacts quite strongly) – was the statement on progress in the Brexit negotiations. In brief, the parties have agreed that there will be no hard border between the two parts of Ireland and that the existing rights of EU citizens living in the UK and of UK citizens living in the (rest of) the EU will be respected. Phew!

The Charity Commission on safeguarding

The Charity Commission has issued a new safeguarding strategy. Continue reading

The Lords debate freedom of religion and belief

On 16 July [column 766 ff] the House of Lords debated a motion moved by Lord Alton of Liverpool (CB), as follows:

“That this House takes note of worldwide violations of Article 18 of the 1948 Universal Declaration of Human Rights and the case for greater priority to be given by the United Kingdom and the international community to upholding freedom of religion and belief”.

He began by quoting Article 18 of the Universal Declaration of Human Rights 1948:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance …”

The Declaration’s stated objective was to realise “a common standard of achievement for all peoples and all nations”. His purpose was to encourage Governments to give greater political and diplomatic priority to Article 18, to insist on the importance of religious literacy, “… to discuss the crossover between freedom of religion and belief and a nation’s prosperity and stability; and to reflect on the suffering of those denied this foundational freedom”. Continue reading

Religion and law round up – 24th August

Retrospect on a quiet week…

FCO and religious freedom

Further to the reply by Lord Wallace of Saltaire on 24 July (HL Deb Vol 755 cols 1324–8) to the debate on Article 18 of the Universal Declaration of Human Rights, Lord Alton of Liverpool asked Her Majesty’s Government how many officials in the Foreign and Commonwealth Office are specifically focused on freedom of religion and for what percentage of their time; and what resources are specifically allocated for the promotion of Article 18 through United Kingdom diplomatic services. In Written Answers of 18 August 2013, the Minister of State, Foreign and Commonwealth Office (Baroness Anelay of St Johns) (Con) stated:

“Within the Human Rights and Democracy Department (HRDD), the Foreign and Commonwealth Office (FCO) has one full time Desk Officer wholly dedicated to Freedom of Religion or Belief (FoRB), who works closely with the Team Leader in the Equalities and Non-Discrimination Team, who themselves spend approximately 50% of their time on FoRB.  Additionally, the Head and the Deputy Head of HRDD spend approximately 5% and 20% respectively of their time on FoRB issues; one Human Rights Advisor spends 5% and one HRDD Communications Officer approximately 10%.

As FoRB is one of only six thematic human rights priorities for the FCO, a considerable number of other FCO officials in London and overseas are engaged directly on FoRB as part of their wider human rights work. Given that violations of FoRB can be closely associated with other threats to UK interests around the world, I cannot provide a precise figure for the total number of FCO officials working on FoRB, though the number is high and rising.

This year, seven FoRB projects around the world were approved and received total funding of £307,835”.

Treatment of cremation ashes

Following the publication of the report of the Infant Cremation Commission chaired by Lord Bonomy on infant cremation at Mortonhall, Edinburgh, reviewed here, the Scottish Government published its response in which it announced the establishment of a national investigation team to look into all the families’ allegations. The investigation team is to be headed by the former Lord Advocate, the Rt Hon Dame Elish Angiolini QC DBE, who also led the Mortonhall investigation. Prior to the publication of his report, Lord Bonomy noted emergence of further allegations regarding the joint cremation of babies and adults at Hazlehead Crematorium in Aberdeen. Last year, BBC Scotland revealed that no ashes had been offered to the families of infants cremated in Aberdeen over a five-year period, although the report indicated that an earlier council investigation had found no evidence of wrongdoing. Nevertheless, this week the BBC reported that a senior member of staff at an Aberdeen crematorium who was being investigated over its handling of babies’ ashes has lost his job. Continue reading

HMG and votes for prisoners: maybe not such a cunning plan

As readers of this blog will be aware, in an attempt to comply with the judgments of the ECtHR on prisoners’ voting rights in Hirst v United Kingdom (No. 2) 74025/01 [2005] ECHR 681 (6 October 2005) and Scoppola v Italy (No. 3) 126/05 [2012] ECHR 868 (22 May 2012) last month the Government published a draft bill that put forward three options for MPs:

  • to give the vote to prisoners serving less than six months;
  • to give the vote to those serving less than four years; or
  • to maintain the current blanket ban.

The draft will be considered by a committee of MPs that will make recommendations to the Government – but the current expectation is that when the matter is put to the vote the House will once more vote to maintain the blanket ban.

The BBC now reports that the Council of Europe has told the United Kingdom that it cannot include a blanket ban on prisoner voting as an option when it puts a bill before MPs on the grounds that the blanket restriction criticised by the Court could not be considered compatible with the European Convention on Human Rights.

The Guardian quotes Thorbjørn Jagland, Secretary General of the Council of Europe, as expressing concern that the issue is being mired in the more general disenchantment in some quarters with European integration:

“I’m concerned that the domestic debate against more political integration in the European Union is confused with the broader aim of human rights. The UK has been a leader in human rights and I urge it to continue in this tradition.”

We have little more to add, except to point out that today is Human Rights Day, which marks the adoption of the Universal Declaration of Human Rights by the UN General Assembly on 10 December 1948 – and to reiterate our conviction that human rights are indivisible.

Commission on a Bill of Rights second consultation: a reminder

Many readers will be aware that the Commission on a Bill of Rights launched a second consultation on 11 July. It builds on the Commission’s 2011 Discussion Paper and, says the Commission, “on the views we have heard so far” in the previous consultation – to which I made a fairly tart response at the time. Further details of the second consultation can be found here: the closing date for responses is 30 September.

I blogged about this in July and included a list of the questions in the consultation document: my own response to the second consultation is here. The importance of the Commission’s deliberations for students of law and religion hardly needs to be stressed – whether, like me, you are on the side of maintaining the status quo (or something very like it) or whether you feel that Article 9 ECHR comes fairly low in the human rights pecking-order. But unless you tell it your views, the Commission will never know what you think about the proposal, so please give serious consideration to sending in a response.

The freedom not to believe

If you are unfortunate enough to live under an oppressive regime but have never been involved in active opposition to it, can you legitimately claim asylum in the UK on the grounds that the regime is generally nasty and persecutes people unless they profess loyalty to it? Or should you merely have kept out of trouble back home by keeping your mouth shut so far as you could, and lying when asked about your political opinions?

In RT (Zimbabwe) & Ors v Secretary of State for the Home Department [2012] UKSC 38 (25 July 2012) the Supreme Court came down on the side of the refugees in such circumstances, ruling that an asylum claim could not be rejected simply on the grounds that the claimants could have avoided persecution by lying and feigning loyalty to the regime. In doing so, the Court followed its decision in HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity under the Refugee Convention and that it was no answer to his asylum claim that he could conceal his sexuality in order to avoid persecution. As Rosalind English points out on the UK Human Rights Blog, the appalling Mugabe regime is so paranoid that it expects regular affirmations of loyalty, with the result that Zimbabweans who hold no political opinions are just as likely to be persecuted as opponents of the regime. So the Court was asked to decide a negative – whether the freedom not to hold political opinions was a protected right – and held that it was indeed protected.

But what has all this to do with religion?

In the judgment of the Court (to which Lord Kerr added a very short concurring opinion), Lord Dyson pointed (at para 33) to Articles 18 and 19 of the Universal Declaration of Human Rights 1948, which are given effect internationally by Articles 18 and 19 of the International Covenant on Civil and Political Rights 1966:

“Article 18 of the ICCPR deals with the right to freedom of thought, conscience and religion. Article 19 deals with the right to freedom of opinion and expression. The United Nations Human Rights Committee has commented on these rights. In its General Comment No 22 on Article 18 (30 July 1993), it said that the right to freedom of thought, conscience and religion in Article 18.1 is ‘far-reaching and profound’ (para 1); the terms ‘belief’ and ‘religion’ are to be ‘broadly construed’ (para 2); and article 18 protects ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’ (para 2). In its General Comment No 34 on article 19 (12 September 2011), it said that freedom of opinion and freedom of expression are ‘indispensable conditions for the full development of the person. They are essential for any society. They constitute the foundation stone for every free and democratic society’ (para 2). All forms of opinion are protected (para 9). At para 10, it said: ‘Any form of effort to coerce the holding or not holding of any opinion is prohibited. Freedom to express one’s opinion necessarily includes freedom not to express one’s opinion.’.”

Further, at para 35 Lord Dyson cited with approval Buscarini & Ors v San Marino (24645/94 [1999] ECHR 7 (18 February 1999). In Buscarini the applicants objected to being obliged to swear an oath on the Gospels in order to take their seats in the San Marino Parliament and the Grand Chamber of the ECtHR unanimously concluded that this was incompatible with Article 9 ECHR (thought, conscience and religion), adding (at para 34) that the freedom enshrined in Article 9 “… entails, inter alia, freedom to hold or not to hold religious beliefs and to practise or not to practise a religion.”

He concluded that

“… under both international and European human rights law, the right to freedom of thought, opinion and expression protects non-believers as well as believers and extends to the freedom not to hold and not to express opinions. It is true that much of the case-law and commentary is on freedom of belief in the context of religion, rather than other kinds of belief (whether political, philosophical or otherwise). But I see no basis for distinguishing between the freedom to hold and express different kinds of belief here.” (para 39).

Moreover, Lord Dyson rejected the idea of any implicit “hierarchy of rights”:

“… [T]he right not to hold the protected beliefs is a fundamental right which is recognised in international and human rights law and … the Convention too. There is nothing marginal about it. Nobody should be forced to have or express a political opinion in which he does not believe. He should not be required to dissemble on pain of persecution. Refugee law does not require a person to express false support for an oppressive regime, any more than it requires an agnostic to pretend to be a religious believer in order to avoid persecution. A focus on how important the right not to hold a political or religious belief is to the applicant is wrong in principle.” (para 42: emphasis added).

Comment: Though RT (Zimbabwe) & Ors was about the right not to hold political opinions rather than religious ones, it serves to underline the fact that the protections in international law for the forum internum are for thought and conscience as well as for religion – and that they are intended to protect the atheist, the agnostic and the indifferent as much as the devoutly-religious.

In an interview in the Daily Telegraph on 19 June 2011, Trevor Phillips, the Chairman of the Equality and Human Rights Commission, was quoted as saying, inter alia:

“Our business is defending the believer. The law we’re here to implement recognises that religious identity is an essential part of this society. It’s an essential element of being a fulfilled human being.”

True: but true only up to a point. As the Supreme Court has just confirmed, the business of the Equality and Human Rights Commission – and of the courts – is defending the believer and the non-believer alike.