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
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