Mark Hill, the United Kingdom

• Citation: Vol. 19 No. 2
• Publication year: 2005

THE PERMISSIBLE SCOPE OF LEGAL LIMITATIONS ON THE FREEDOM OF RELIGION OR BELIEF IN

THE UNITED KINGDOM

Mark Hill^*

I. INTRODUCTORY STATEMENT

In the absence of a written constitution, the United Kingdom makes no express provision for the establishment and safeguarding of freedom of religion or belief. Likewise, there is no formal structure providing permissible limitations on such freedom. It is to the specificity of the common law and statute that one must look in order to attempt the formulation of general statements of universal application.¹

II. SOURCES OF LAW ESTABLISHING AND LIMITING MANIFESTATION OF

RELIGION OR BELIEF

A. International Law

1. The Role of International Law According to the Constitution

The domestic courts of the United Kingdom decline to give effect to the provisions of treaties or other pan-national conventions save to the extent that they have been expressly incorporated into domestic legislation.

[O]n its dualist approach to international law-which in contrast to a monist approach²treats domestic law and international law as two different and separate systems of law-international treaties signed and ratified by the United Kingdom are not part of the domestic law of the United Kingdom. Consequently, in order to be enforceable and to bind at the domestic level, such treaties must be domestically incorporated in an Act of Parliament.

Thus while international treaties may inform governmental policy and conduct-both domestic and foreign-judges will not look to them in determining, as a matter of domestic law, the rights and obligations of individual litigants.

2. The Role of European Law

To give internal legal effect to community law, the European Communities Act of 1972 was enacted by the United Kingdom government. Section 2(1) of the Act gives domestic effect to directly applicable community law.³

Accordingly, the constitutional principle of parliamentary sovereignty is safeguarded and community law ranks as a species of delegated legislation formulated in Brussels, but directly applicable by dint of a provision of a domestic statute, which-in theory at least-may be repealed at any stage.

3. Whether Municipal Courts Apply International Human Rights Law

For the constitutional reasons already given, municipal courts do not apply international human rights law save to the effect (a) that it has been expressly incorporated into domestic law; or (b) that it is mirrored in United Kingdom common law. Since October 2, 2000, by virtue of the Human Rights Act 1998, municipal courts have been obliged to apply the rights guaranteed by the

European Convention of Human Rights.⁴Prior to that, "the Courts regarded the

Convention as an aid to interpretation but had no jurisdiction directly to enforce the rights and freedoms under the Convention."⁵In interpreting and applying Convention rights, United Kingdom courts are now under a statutory duty to have regard for the jurisprudence of Strasbourg, but they are not bound to follow it.⁶

4. Whether the Legislature Amends Laws to Conform to International

Standards

The legislature of the United Kingdom is not obligated to amend their laws to conform to international standards, but there are a significant number of instances where this has occurred in practice. In Dudgeon v. United Kingdom,⁷a law in Northern Ireland was found to be in breach of community law. This led to a direct amendment of the law. Similarly, within the United Kingdom, the case law of the European Court of Human Rights has led to more than one hundred changes to State practice or to legislation.⁸

Equally, under the new regime effected by the Human Rights Act 1998, it is open for certain higher courts in the United Kingdom to make a declaration of incompatibility to the extent that the court considers a provision of domestic legislation to be incompatible with one or more of the Convention rights under the European Convention on Human Rights. It is then open to the government to remove the incompatibility by amending the particular provision by dint of fast track remedial action. This is a discretionary remedy open to a Minister of the Crown and there is no obligation to act.⁹

5. To What Extent International Norms Are Directly Applicable (Self- Executing)

With the exception of the provisions of Sec. 2(1) of the European Communities Act, giving domestic effect to directly applicable Community Law,¹⁰and the "incorporation" into domestic law of the European Convention on Human Rights under the Human Rights Act 1998, international norms are not self-executing in the municipal courts of the United Kingdom, although such norms may be similarly (or identically) articulated as part of the common law.

B. Constitutional Law

"The UK has no written constitution and so no formal constitutional guarantees either for religious freedom or for the churches' rights to self- determination."¹¹Therefore, "[t]he starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law . . . or by statute."¹²The substance of this Article is devoted to a detailed discussion of particular instances of liberty and limitation from which general principles may be discerned.

C. Codes and Statutes

1. Principal Statute(s)

In the United Kingdom, there is no principal statute conferring freedom of religion. Such guarantees are piecemeal in nature, found in a large variety of different statutes, secondary legislation, and case law. Since October 2, 2000, Article 9 of the European Convention on Human Rights ("freedom of thought, conscience and religion") has created a freestanding right under the Human Rights Act of 1998, although it remains to be seen what-if anything-this may add to the pre-existing position in English common law.

2. Other Statutes Affecting Legal Limitations, Including Criminal Statutes

The development of the concept of religious freedom has been marked by the lifting of disabilities and the positive conferral of rights. For example, the Act for the Relief of Catholics of 1828 permitted Roman Catholic schools and places of worship to do these things. It also allowed Roman Catholics entry to the legal profession and relief from taking the oath of royal supremacy. In the same year, the Corporation and Tests Acts were repealed. In 1858, Jews were admitted to parliament; in 1888, atheists were given the same right.

D. Other Sources of Law: Case Law, Administrative Regulations, Etc.

Other sources of law are disparate in their nature and are found dispersed in a variety of statutory enactments or decisions of common law courts. What follows is a list of some of the more significant sources. For convenience, they are divided into subject areas.

1. Worship

Section 11 of the Places of Worship Act of 1812 provides that no meeting for religious worship may take place with doors locked, bolted, or barred to prevent entry of any person.

2. Prisoners

The Prison Act of 1952¹³and secondary legislation, the Prison Rules

1999,¹⁴establish religious freedom insofar as Christian prisoners are exempt from unnecessary work on Sunday, Christmas Day, or Good Friday; prisoners of other religions are, likewise, exempt from unnecessary work on their recognized days of religious observance.¹⁵So far as is reasonably practical, there must be available for the personal use of every prisoner such religious books recognized by their denomination as are approved by the Secretary of State.¹⁶Prisoners are entitled to a diet that accords with the demands of their religion as agreed between the religious body and Prison Service Headquarters, but if there is no agreement, the governor should ensure, subject to the requirements of security and control, that prisoners are not discriminated against unfairly in the provision of diet.¹⁷A prison chaplain must conduct divine services for prisoners belonging to the Church of England at least once every Sunday, Christmas Day, and Good Friday, and such celebrations of Holy Communion and weekday services as may be arranged.¹⁸Prison ministers must conduct divine service for prisoners of their denomination at such times as may be arranged.¹⁹Every prison must have a chaplain and, if large enough, may also have an assistant chaplain. Both must be clergy of the Church of England (or, for prisons in Wales, of the Church in Wales²⁰). Appointment belongs to the Secretary of State. Notice of nomination of a chaplain or assistant chaplain to a prison must be given to the diocesan bishop within a month. The chaplain, or assistant, may officiate in the prison only under the authority of a licence from the bishop.²¹As a matter of practice, in addition to the chaplain, a Roman Catholic priest and a Methodist minister are appointed to every prison and other ministers are appointed or called in as necessary. The Prison Service Chaplaincy, based at Prison Service Headquarters, is the central organization responsible for religious activity in Prison Service establishments.²²

3. Work

Although there are established churches in England and Scotland, the law of the State makes little systematic provision for the safeguarding of sacred time and the observance of religious law and practice in the workplace.²³Such law as exists is dispersed and particular. Furthermore, the existing law is difficult to discern general principles of broad application.²⁴

4. Sunday Observance

Generally, the common law does not prevent or vitiate any act on a Sunday that is otherwise lawful.²⁵Sunday is, however, a day on which no judicial act ought to be done.²⁶In emergencies, an interlocutory injunction may be granted on a Sunday; this is an act in exercise of the equitable jurisdiction originally of the Lord Chancellor.²⁷The Sunday Observance Act 1780 exists to prevent "certain abuses and profanations on the Lord's Day, called Sunday"; the keeper of a disorderly house forfeits £200 for every Sunday upon which his property is open for public entertainment or amusement or for public debating. There are...