Peter Cumper, the United Kingdom and the U.n. Declaration on the Elimination of Intolerance and Discrimination Based on Religion or Belief

• Publication year: 2007

THE UNITED KINGDOM AND THE U.N. DECLARATION ON THE ELIMINATION OF INTOLERANCE AND DISCRIMINATION BASED ON RELIGION OR BELIEF

Peter Cumper^*

INTRODUCTION

In 1676, Sir Matthew Hale, Lord Chief Justice of England, stated that Christianity was "parcel of the laws of England,"¹while at the beginning of the twentieth century, the eminent British constitutional lawyer Maitland asserted that in England, "[r]eligious liberty and religious equality are complete."²Most commentators in the past appear to have had little problem in reconciling the principles of "liberty" and "equality" with a legal system that accorded the Christian faith privileged status.³Yet in spite of longstanding ties between the state and the Anglican Church, the changing social and religious landscape in England has made it increasingly difficult to make such assumptions in the twenty-first century. After all, England today is a largely secular, albeit religiously diverse, society in which significant numbers of people embrace a variety of faiths or systems of belief.⁴With this in mind, using the 1981 U.N. Declaration on the Elimination of Intolerance and Discrimination Based on Religion or Belief ("1981 U.N. Declaration" or "Declaration") as a benchmark,⁵the aim of this Article is to consider the extent to which freedom of religion or belief is respected in the United Kingdom generally and England in particular.⁶

This Article begins with an examination of the foundations of religious liberty before focusing on the challenge of reconciling the U.K.'s obligations under the 1981 U.N. Declaration with the privileges of the Established Anglican Church. It then discusses whether there are any lessons the U.K. can learn from the 1981 U.N. Declaration and considers the extent to which the Declaration itself could be improved by taking cognizance of British law. The Article ends by offering some general conclusions.

I. THE FOUNDATIONS OF RELIGIOUS LIBERTY IN THE UNITED KINGDOM

A. The Evolution of Religious Freedom in the United Kingdom

Although freedom of religion and belief is today a cardinal feature of British democracy, this set of circumstances has not always been the case. Toleration of religious difference was largely unheard of in previous generations and those of a persuasion different from that of the dominant faith group had few, if any, rights or privileges. In tracing the evolution of religious liberty in the U.K., a number of factors are particularly worthy of consideration.

First, until the last few centuries, there was a general assumption that minority faiths and religious dissenters posed a threat to the very existence of the state. As a consequence, Jews were banished from England in 1290,⁷and heresy remained a capital offense well into the 17th century.⁸Roman Catholics, whose allegiance to the state was often questioned in the wake of the Protestant Reformation, were subject to particularly harsh penalties. For example, under the First Test Act, officers of the Crown not only had to swear an oath of allegiance to the Sovereign but also were required to take the Anglican Eucharist and declare that they had rejected the doctrine of transubstantiation,⁹while the Second Test Act effectively banned Catholics from sitting in either House of Parliament.¹⁰Similarly, Protestant dissenters were affected by legislation such as the Corporation Act,¹¹which excluded from public office those who refused to take the Church of England's

Eucharist, as well as the Conventicle Act,¹²which made it unlawful to attend a non-Anglican religious gathering of five or more persons.¹³Thus, until the advent of religious toleration in the seventeenth century, the law was used less as a way of protecting an individual's freedom of conscience and more as a tool for controlling religious unorthodoxy.¹⁴

Secondly, in spite of the United Kingdom's apparently proud democratic heritage, draconian restrictions were imposed on a number of religious groups until comparatively recently in British history. The Toleration Act may have established the principle of exemption from legal penalty on the grounds of belief, but it only accorded protection to Protestant non-conformists who believed in the Trinity.¹⁵Accordingly, restrictions on the role of Roman

Catholics¹⁶and Jews¹⁷in public life were not lifted until the mid-nineteenth century. Moreover, it is particularly surprising that some longstanding discriminatory rules have only been repealed fairly recently. For example, the ban on the Lord Chancellor being a Catholic was not removed until 1974,¹⁸while it was 2001 before curbs on Catholic (and Anglican) priests being able to sit in the House of Commons were lifted.¹⁹Today Roman Catholics enjoy complete freedom of worship,²⁰but the British Constitution's historical antipathy to Catholicism would appear to explain some curious anomalies, especially the fact that legislation still prohibits the Sovereign from converting to Catholicism or marrying a Catholic.²¹

Thirdly, religious liberty has evolved in a way that is reflective of the distinctive characteristics of the British Constitution.²²Because the constitution is not codified in a single document-instead being found in a range of diverse sources, including statutes, European Union legislation, the common law, and conventions-it is hardly surprising that recognition of the rights of minority faiths has long been an incremental process. From a series of statutes in the eighteenth and nineteenth centuries that laid the foundations of religious freedom, to more recent legislative measures outlawing discrimination, the catalyst for reform has thus tended to be piecemeal. Furthermore, the unusual nature of the British Constitution, whereby an individual has traditionally enjoyed the "right to do what he likes, unless restrained by the common law . . . or by statute,"²³has also shaped the way in which religious liberty has developed. Thus, as noted by one commentator: "[t]he UK has no written constitution and so no formal constitutional guarantees either for religious freedom or for the churches' rights to self- determination."²⁴This statement, which was made prior to the enactment of the Human Rights Act 1998, should however be qualified today in one crucial respect. As a result of the Human Rights Act, the right to exercise one's religion or belief is now enshrined in British law.

B. The Human Rights Act 1998

The adoption of the Human Rights Act 1998 was a constitutional milestone in the U.K.²⁵The Act, which incorporates the bulk of the European Convention on Human Rights (ECHR)²⁶into U.K. law, guarantees a range of mainly civil and political rights,²⁷including freedom of thought, conscience, and religion.²⁸Therefore, with the incorporation of Article 9 of the ECHR,

British law now expressly recognizes the right to change one's religion or belief, as well as the right to manifest it "in worship, teaching, practice and observance," subject to a number of limitations that include the protection of public safety, public order, health, morals, and the rights and freedoms of others.²⁹

Although Britain has never been found guilty of violating Article 9 of the ECHR by the European Court of Human Rights,³⁰the high number of complaints (covering a wide range of areas) submitted to the Court against the U.K. galvanized Tony Blair's government into enacting the Human Rights Act.³¹The Act, which stemmed the flood of cases taken to the European Court from the U.K., imposes a duty on the British courts to ensure that the actions of public authorities are compatible with ECHR.³²In the event of a conflict between U.K. law and the ECHR, judges can issue a declaration of incompatibility.³³This is a public statement that places the onus on the government to ensure that the law is reformed, so as to conform with the Human Rights Act. To date, the courts have not issued any declarations of incompatibility in relation to Article 9 of the ECHR. This reflects the fact that religious liberty is generally well protected under British law, but it also perhaps belies the cautious approach that the U.K. courts have often taken with regard to the protection of freedom of thought, conscience, and belief under the

Human Rights Act.

The incorporation of Article 9 of the ECHR into U.K. law has meant that British courts are required to rule on a number of diverse issues related to religion and belief. These range from a Rastafarian's unsuccessful submission that he had only been in possession of cannabis because he was using the drug for "religious" purposes,³⁴to the rejection of a claim that the government's ban on foxhunting with hounds was incompatible with the manifestation of a complainant's beliefs under Article 9 of the ECHR.³⁵Furthermore, whilst not bound by previous rulings of the European Court and Commission of Human Rights,³⁶British judges have often displayed a (perhaps understandable) willingness to follow the approach of the European Court (and Commission) of Human Rights in relation to the protection of religion or belief.³⁷As a consequence, a head-teacher's claim that corporal punishment at an independent Christian school could be a manifestation of a religious belief was rejected,³⁸as was an attempt (under Article 9 of the ECHR) to establish a separate "peace tax fund" for taxpayers who objected to their taxes being used for military purposes.³⁹However, there have also been occasions when one might argue that the Strasbourg approach to the interpretation of Article 9- which has typically been seen as quite restrictive⁴⁰-should have been eschewed by Britain's judges. These include the Court of Appeal's ruling that a Christian employee had been lawfully dismissed for refusing to work on Sundays,⁴¹and the House of Lords' decision that a teenage Muslim school girl could be banned from wearing a loose fitting outer garment (a jilbab) to school, which she had claimed was mandated by her faith.⁴²

In spite of the Courts' relatively cautious approach to...