Select Committee on Religious Offences in England and Wales First Report


Appendix 4

International and European Law

16.  There are two main provisions of international law to which the United Kingdom has acceded that are relevant to any consideration of the law on religious offences. These are the European Convention on Human Rights and the International Covenant on Civil and Political Rights. They, together with provisions that are being introduced into the European Union's political and legal structure, create obligations for the United Kingdom and form part of the background to the Committee's work. In addition, the principles contained in the United Nations Charter and the Universal Declaration of Human Rights are also relevant.

THE EUROPEAN CONVENTION ON HUMAN RIGHTS

17.  Article 9 of the Convention provides that

"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 worship, teaching, practice and observance.

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."

The European Court of Human Rights has said that freedom of thought, conscience and religion is one of the foundations of a democratic society and that pluralism in beliefs is "indissociable" from a democratic society.[145] The Court, together with the European Commission of Human Rights, has developed a considerable jurisprudence in relation to this Article.[146] British courts are now required to take account of this jurisprudence when considering the application of the Human Rights Act 1998.[147] However, it is important to note that United Kingdom courts are not bound to apply this jurisprudence in domestic courts. It is equally important to note that the individual right to make an application to the European Court of Human Rights is not affected by the implementation of the Human Rights Act 1998.

18.  Article 9 of the European Convention on Human Rights has to be read in conjunction with the other Articles in the Convention. In particular it has to be read in the light of Article 10. Article 10 states that

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises."

Like Article 9, Article 10 is a qualified right. It holds that

"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation of the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Again as with Article 9, Article 10 is regarded by the European Court of Human Rights as being one of the essential foundations of democratic society[148]. Neither Article 9 nor Article 10 has any priority over the other. Thus, in applying them to the facts of any individual case, the Court is faced with a complex balancing job. In relation to this, in the context of our work, one passage in the Court's decision in Otto-Preminger Institut v Austria is of particular importance. In the course of discussing Article 10 the Court said

"Those who choose to exercise the freedom to manifest their religion cannot reasonably expect to be exempt from all criticism. They must tolerate and accept the denial by others of their religious beliefs and even the propagation by others of doctrines hostile to them. However, the manner in which religious beliefs and doctrines are opposed or denied is a matter which may engage the responsibility of the State, notably its responsibility to ensure the peaceful enjoyment of the right guaranteed under Article 9 to holders of those beliefs and doctrines"[149].

19.  Since Article 9 is not an unqualified right it is permissible, under the convention, for national states to act in ways that restrict rights under the Article. However, if a state does seek to restrict a right under Article 9 the restriction must come within the limits set by Article 9(2) and must also comply with the more general requirement that the restriction is proportionate to the need that justifies its introduction[150].

20.  The jurisprudence under the European Convention is commonly said to have taken a fairly liberal approach to the question of what constitutes a religion for the purposes of Article 9[151]. It is certainly true to say that either the Commission or the Court have considered applications by groups as various as Druids and the Church of Scientology[152]. However, in some instances applications have been heard from religious groups without there being a need for there to be a determination as to the religious status of the group. The liberality of the Convention's jurisprudence has therefore not been put to a final test in some cases. Nevertheless it is clear that both the Court and the Commission have been happy to entertain applications under the Convention from a wide variety of sources.

21.  The jurisprudence that relates to Article 9 is relatively underdeveloped. The case load for the Commission and the Court has been comparatively small. The first major case, Kokkinakis v Greece, was not decided until 1993. In Kokkinakis the applicants were Jehovah's Witnesses who had called at a house to persuade the occupants to join their religion. The occupant, the wife of a Greek Orthodox priest, called the police because, under Greek law, proselytism that involves an attempt to convert Orthodox believers is a criminal attempt. The Court held that there was no breach of Article 9 because there was no evidence that there had been any attempt to convert the occupant by improper means. Bearing Christian witness was said by the Court to be acceptable within a democratic state. Moreover there was no evidence that there was any pressing social need that justified the conviction of the applicants. However, in other cases the court has accepted that the right to bear witness is counter-balanced by the circumstances of those to whom witness is made. Thus in Larissis and other v Greece officers who had attempted to convert soldiers under their command, and who had been prosecuted for this, were held not to have had their Article 9 rights violated because the hierarchical nature of the situation made it difficult for the soldiers to resist their approaches[153].

22.  Article 9 is largely concerned with the sphere of personal religious creeds, i.e. the forum internum. It also protects individuals from being compelled to be involved in religious activities against their will. However, these propositions raise difficult questions about the dividing line between the forum internum and the forum externum and what will constitute forcing somebody to do something against their will. It is with these difficulties that the Court and the Commission have struggled in applying Article 9.

23.  The jurisprudence relating to the Convention in relation to Article 9 is further limited by the general notion developed by the Court of the margin of appreciation. The Court has taken the view that international judges, by virtue of their situation, have a poorer grasp of the precise details of the situation in a state than do the judges of that state. Those judges are therefore in a better position to determine whether or not local circumstances justify restrictions on rights given under the Convention where the Convention allows of such restriction[154]. This discretion given to state courts and state authorities is not unlimited and the Court reserves to itself the right to hold that states have acted outside the boundaries of the margin of appreciation. Nevertheless the doctrine places limits on the ability of individuals to make successful applications under Article 9.

24.  The Convention makes further specific references to religion other than that made in Article 9. In Article 2 of the First Protocol the Convention lays down that

"No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and teaching, the state shall respect the rights of parents to ensure such education and teaching is in conformity with their own religious and philosophical convictions."

The Court has held that respect for the rights of parents involves more than mere acknowledgement of those rights[155]. However, what is required by way of acknowledgement in terms of educational provision is not as yet clear. The doctrine of the margin of appreciation may be important here in granting states a wide discretion in their application of this provision.

25.  Article 14 of the Convention provides that

"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a notional minority, property, birth or social status."

The Court has held that there is discrimination in treatment if there is a difference in treatment that has no objective or reasonable justification or does not pursue a legitimate aim[156].

THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS

26.  Article 2 of the International Covenant on Civil and Political Rights contains the general provision that:

"Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted."

27.  More particularly, Article 18 of the International Covenant provides that

"Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others".

This Article has to be read in conjunction with Article 19 that provides that:

"1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

    a) For respect of the rights or reputations of others;

b) For the protection of national security or of public order (ordre public), or of public health or morals".

28.  There are obvious similarities between these Articles and the provisions of the European Convention. However there are ambiguities in Article 18. For example, the Article permits both of a reading that gives individuals the right to abandon their religion and one that allows individuals to adopt a faith but not to abandon it. Difficulties that the European Court of Human Rights has struggled with in applying Article 9 are mirrored in the application of Article 18 of the International Covenant on Civil and Political Rights. Thus, for example, the question of what constitutes a manifestation of belief is a complex one that admits of no certain answer.

29.  Article 20(2) of the International Covenant on Civil and Political Rights provides that

"Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law."

However, the United Kingdom has entered a reservation with respect to this Article:

"The Government of the United Kingdom interpret article 20 consistently with the rights conferred by articles 19 and 21 of the Covenant and having legislated in matters of practical concern in the interests of public order (ordre public) reserve the right not to introduce any further legislation. The United Kingdom also reserve a similar right in regard to each of its dependent territories."

Finally, Article 26 of the International Covenant provides that

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

Whether the current English law of blasphemy, with its special protection for the Church of England, is in accord with this provision must be open to question.

THE LAW OF THE EUROPEAN UNION

30.  In December 2000 the Nice European Council Summit approved the Charter of Fundamental Rights for the European Union. This Charter was drafted as though it were to have full legal effect, but at present it does not have that legal status, with a decision on the matter having been postponed until the Inter-Governmental Conference in 2004. Nevertheless the Charter has already had a considerable impact on the European Union and has been referred to by, amongst others, the Advocates-General of the Court of Justice, the Court of First Instance and the European Ombudsman. It is already therefore influential in the definition of the law and legislation of the European Union. The Charter contains a number of provisions that are relevant to religious groups, the most important of which is Article 10 which provides that

"Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right."

As with the European Convention on Human Rights and the International Covenant on Civil and Political Rights, this has to be read in conjunction with provisions dealing with freedom of speech. Article 11 provides that

"Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

The freedom and pluralism of the media shall be respected."

31.  Although the precise impact of Article 10 is impossible to gauge because it is so new, it demonstrates the continuing interest in human rights in general in the European Union, and the rights of religious groups in particular. Even whilst it remains a political declaration, member states of the European Union cannot ignore its provisions. Moreover other developments, such as the draft Framework decision on Combating Racism and Xenophobia, also suggest that religious groups and matters of concern to religious groups are likely to have a higher place on the agenda of the European Union than they have done in the past.

THE UNITED NATIONS

32.  The United Nations Charter makes a number of references to human rights in general and the rights of religious groups in particular in its Articles. Article 1(3) notes that one of the purposes of the United Nations is

"To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion".

Article 55 provides that the United Nations shall promote, amongst other things, "universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion", whilst Article 56 states that:

"All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55".

33.  On December 10 1948 the General Assembly of the United Nations adopted, without a dissenting vote, the Universal Declaration of Human Rights. Whilst the Universal Declaration is not a legally binding document, the principles it establishes plainly cannot be ignored. Article 18 provides that

"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".

Other Articles in the Universal Declaration also refer to religion. Thus Article 2 provides that

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty".

Article 16(1) provides that

"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution".

Article 26(2) provides that

"Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace".

34.  Other Articles do not specifically refer to religion but do make general statements that apply to religious groups. Most importantly, Article 7 provides that

"All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination".

At the same time the Universal Declaration pronouncements on religion have to be read in conjunction with the other rights in the Declaration. Thus a reading of Article 18 has to be balanced with a reading of Article 19:

"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers".


145   Kokkinakis v Greece (1994) 17 EHRR 397 at p 418. Back

146   In November 1998 the old system under the European Convention whereby the Commission considered the admissibility of an application and, if the application was admissible, issued a report expressing an opinion on whether or not there had been a violation of the Convention and the Court then determined the substantive merits of the cases was replaced by one where the Court was charged with both functions.  Back

147   S 2 Human Rights Act 1998. Back

148   Handyside v United Kingdom (1979-80) 1 EHRR 737 at p 754. Back

149   (1995) 19 EHRR 34 at p 56. Back

150   Silver v United Kingdom (1983) 5 EHRR 347 at p 377. Back

151   See, for example, C Evans "Freedom of Religion under the European Convention on Human Rights" OUP (2001) p 53.  Back

152   Chappell v United Kingdom (1990) 12 EHRR 1. Back

153   (1999) 27 EHRR 329. Back

154   Handyside v United Kingdom (1979-80) 1 EHRR 737 Back

155   Valsamis v Greece (1997) 24 EHRR 294. Back

156   Lithgow and others v United Kingdom (1986) 8 EHRR 329. Back


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003