The Impact of Human Rights

O’Halloran, Kerry

doi:10.1007/978-3-319-04319-7_7

Kerry O’Halloran⁴

Part of the book series: Ius Gentium: Comparative Perspectives on Law and Justice ((IUSGENT,volume 36))

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Abstract

This chapter identifies and considers the impact of human rights on religion and religious organisations, including religious charities, drawing on the case law arising from: the Equality Act 2010; Article 14 of the European Convention and the right not to suffer discrimination on grounds such as religion; Article 9 and the right to freedom of thought, conscience and religion; Article 11 and the right to freedom of association; Art 18 of the International Covenant on Civil and Political Rights; and Article 2 of Protocol 1.

It examines the public benefit in relation to the government policy of positive discrimination in favour of religious charities: in the context of faith based schools etc.; and as benchmarked against established human rights requirements. In considers: domestic judicial rulings; various research reports and government papers; and the concerns expressed by international bodies (e.g. Bielefeldt, a Special Rapporteur, in report on freedom of religion to the UN Human Rights Council in Geneva, 2011).

In particular this chapter provides a record of the main issues that have so far arisen for the Church as it adjusts to its relatively new human rights context, and analyses their strategic significance for the Church and on a wider basis.

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Notes

1.
See, Report of the Special Rapporteur on freedom of religion or belief, Heiner Bielefeldt, (A/HRC/19/60), Geneva (6th March 2012) at: http://reliefweb.int/report/world/report-special-rapporteur-freedom-religion-or-belief-heiner-bielefeldt-ahrc1960.
2.
See, Eweida v. British Airways plc [2009] ICR 303, per Elias P, at para 27.
3.
See, the Human Rights Act 1998, s.6(1): ‘it is unlawful for a public authority to act in a way which is incompatible with a Convention right, unless the public authority in question is required so to act by legislation’; and the Human Rights Act 1998, s.3. See, also, Office for Democratic Institutions and Human Rights, Organization for Security and Co-operation in Europe and European Commission for Democracy through Law, ‘Guidelines for Review of Legislation Pertaining to Religion Or Belief’, Venice, 2004.
4.
Together with the associated ECtHR case law, including: Buscarini and Others v. San Marino (application No. 24645/94), 1998; Kokkinakis v. Greece (application No. 14307/88), 1993; Leyla Sahin v. Turkey, 2004; Pichon and Sajous v. France; Leela Forderkeis E.V. and Others v. Germany (application No. 58911/00), 2008; Universelles Leben E.V. v. Germany (application No. 29745/96), 1996; and Lautsi v. Italy, 2011.
5.
As noted in Catholic Care (Diocese of Leeds) v. the Charity Commission for England and Wales and the Equality and Human Rights Commission [2010] EWHC 520 (Ch), per Briggs J at para 57, citing Salgueiro Da Silva Mouta v. Portugal (2001) 31 EHRR 47.
6.
(1988) 11 EHRR 299.
7.
See Kozak v. Poland [2010] ECHR 280, at para 92.
8.
R v. Registrar General ex p. Segerdal [1970] 2 QB 697.
9.
See, for example, Steel and Morris v. the United Kingdom, (application no. 68416/01) (2005).
10.
Kiyutin v. Russia, (application no. 2700/10), March 2011.
11.
The Sexual Orientation Regulations 2007, Regulation 18, issued under powers provided by the Equality Act 2006.
12.
See, Thlimmenos v. Greece (2001) 31 EHRR 411 and the Human Rights Committee statement in Comment No. 18.
13.
See, Markesinis, B.S., and R.J.C. Munday. 1998. An outline of the law of agency, 4th ed. London: LexisNexis.
14.
See Brody, E., and J. Tyler. 2009. How public is private philanthropy? Separating reality from myth, 63. Washington, DC: The Philanthropy Roundtable.
15.
See, Kokkinakis v. Greece A 260-A (1993), 17 EHRR 397 at para 31.
16.
See, Kiyutin v. Russia, (application no. 2700/10), March 2011.
17.
See, EB v. France (2008) 47 EHRR 21, at para 91.
18.
Ex parte Williamson [2005] UKHL 15, [2005] 2 AC 246 (HL), at para 24.
19.
Neutral Citation no. [2007] NIQB 66.
20.
Ibid, at paras 66 and 68.
21.
Ibid, citing R (Williamson) v. Secretary of State for Education and Employment [2005] 2 AC 246, per Lord Nicholls. A case where the Secretary of State contended that the interference complained of (regulations prohibiting corporal punishment) did not interfere materially with the claimant parents manifestation of their beliefs, as it left open to the parents several adequate alternative courses of action, but the House of Lords did not accept that the suggested alternatives would be adequate and held that there had been interference with the belief.
22.
Ibid, at para 68, citing Kalac v. Turkey [1997] EHRR 552 where the applicant was protesting against his compulsory retirement from the military, due to his alleged involvement with a fundamental Muslim sect contrary to the secular nature of the Turkish State, but the court found that in choosing a military career the applicant had accepted a military system that placed limitations on individuals that would not be imposed on civilians.
23.
Gallagher v. Church of Jesus Christ of Latter-Day Saints [2008] 1 WLR 1852, 1867. Note this matter has since been referred to the ECtHR: The Church of Jesus Christ of Latter-day Saints v. United Kingdom (application no. 7552/09). The applicant complains under ECHR Article 9, alone and in conjunction with Article 14, of discrimination as regards its failure to receive statutory tax exemption for one of its places of worship. There is a further complaint under Article 1 of Protocol 1 alone and in connection with Article 14 that denial of the statutory exemption is disproportionate discrimination on the grounds of religion. Finally, the applicant complains under Article 13 of failure by the British House of Lords to adequately apply the Convention.
24.
Ibid 1857–8. Lord Scott agreed that Art 9 was not infringed, but went on to consider the application of Art 14 in the context of the Art 9 right.
25.
Ex parte Williamson [2005] UKHL 15, [2005] 2 AC 246 (HL), at para 23.
26.
See, Taylor, P.M. 2005. Freedom of religion: UN and European human rights law and practice, 347. Cambridge: Cambridge University Press.
27.
Application No. 7050/75, Comm. Report para 71 D.R. 19. The Commission then stated the principle that “the term ‘practice’ as employed in Article 9(1) does not cover each act which is motivated or influenced by a religion or a belief”.
28.
Neutral Citation no. [2007] NIQB 66.
29.
Ibid, at para 48.
30.
[2012] EWHC 3221.
31.
Ibid at para 85.
32.
Ibid at para 82.
33.
[2010] EWCA Civ B1 (29 April 2010).
34.
See, Playfoot (a minor), R (on the application of v. Millais School [2007] EWHC 1698 where a schoolgirl challenged the decision of her school to prohibit her wearing a ‘purity ring’ as a symbol of her Christian commitment to celibacy before marriage.
35.
See, Ghai, R (on the application of) v. Newcastle City Council & Ors [2010] EWCA Civ 59 which concerned a request from Ghai, a Hindu, that the Council make available some land outside the city precincts to allow the practice of open-air cremation as his religion required that cremation take place by traditional fire, in direct sunlight and away from man made structures.
36.
A 260-A (1993), 17 EHRR 397. Also, see, Larissis and Others v. Greece (Ser. A) No 65 ECtHR (1998 – V) 363.
37.
App. No. 101616/83 (1984) 40 D&R 284.
38.
See, Taylor, P.M. 2005. Freedom of religion: UN and European human rights law and practice, 341. Cambridge: Cambridge University Press.
39.
(2001) 31 EHRR 411 at para 44.
40.
Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms (ETS No. 177) is an anti-discrimination treaty of the Council of Europe. It was adopted on November 4, 2000, in Rome and entered into force on April 1, 2005, but has yet to be ratified by the UK.
41.
See, Charity Commission, ‘Equality Act guidance for charities: Restricting who can benefit from charities’, 2012, at para C4.
42.
R (Elias) v. Secretary of State for Defence [2006] EWCA Civ 1293.
43.
[2007] UKHL 11. See, also: De Freitas v. Permanent Secretary of the Ministry of Agriculture Fisheries, Lands and Housing [1999] 1 AC 69, per the Privy Council; and R v. Oakes [1986] 1 SCR 103, per Dickson CJ.
44.
Christian Institute and Others v. Office of First Minister and Deputy First Minister, Neutral Citation no. [2007] NIQB 66.
45.
See, Charity Commission, ‘Equality Act guidance for charities: Restricting who can benefit from charities’, 2012 at para C.
46.
Ibid, at para F5.
47.
See, for example, R (Begum) v. Head Teacher and Governors of Denbeigh High School [2006] 2 All ER 487.
48.
[2008] IRLR 29.
49.
[2009] EWCA (Civ) 1357 (15 December 2009).
50.
[2010] EWCA Civ80 (12 Feb 2010). OUP, 2012, at p. 14. This case followed on from the Kirklees Metropolitan Borough Council case in April 2007 before the EAT concerning a Muslim teacher, Mrs Azmi, who refused to remove her veil during lessons when male colleagues were present. She lost her claims for direct and indirect discrimination and harassment.
51.
[2010] EWCA Civ B1 (29 April 2010). Also, see, R (Johns) v. Derb City Council [2011] EWHC 375 (Admin); [2011] 1 FLR 2094.
52.
[2009] EWCA Civ 1357, [2010] IRLR 211.
53.
See, the School Standards Framework Act 1998, s.60, which provides that foundation or voluntary schools with a religious character can give preference in employment, remuneration and promotion to teachers whose beliefs are in accordance with the tenets of that religion.
54.
1602844/2006, (April 2007).
55.
[1995] ICR 401.
56.
Hender & Sheridan v. Prospects for People with Learning Disabilities [2008] Employment Tribunal (nos. 2902090/2006 & 2901366) (2008).
57.
Thereby ostensibly complying with the ‘genuine occupational requirement’ of the Employment Equality (Religion or Belief) Regulations 2003.
58.
(Application no. 1620/03), 23 September 2010.
59.
(Application no. 425/03), 23 September 2010.
60.
Where a faith school is a voluntary aided school, as JFS is, and so maintained by public funding, its religious character has to be designated by the Secretary of State (School Standards and Framework Act 1998, s.69).
61.
App. No. 15472/02 (Eur. Ct. H.R. [GC] June 29, 2007).
62.
App. No. 30814/06 (Eur. Ct. H.R. Mar. 18, 2011).
63.
Ibid at para 66.
64.
R(E) v. Governing Body of JFS [2010] IRLR 136; [2009] UKSC 15 on appeal from [2009] EWCA Civ 626. See, also, Mandla (Sewa Singh) and another v. Dowell Lee and others [1983] 2 AC 548.
65.
A decision in keeping with the policy statement made by Tony Blair, the then Prime Minister, on announcing the preparation of the Sexual Orientation Regulations 2007:

there is no place in our society for discrimination. That is why I support the right of gay couples to apply to adopt like any other couple. And that is why there can be no exemptions for faith-based adoption agencies offering publicly-funded services from regulations which prevent discrimination.
66.
See, the Equality Act 2006, s.81, together with the Equality Act (Sexual Orientation) Regulations 2007. A main effect of the Regulations was, subject to important exceptions, to make it unlawful for a person to discriminate on grounds of sexual orientation in the provision of goods, facilities or services to the public or a section of the public.
67.
Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] EqLR 597.
68.
In closing remarks the Tribunal noted that the Public Sector Equality duty imposed by s.149(1) of the Equality Act 2010 requires public bodies to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity. It appeared to the Tribunal that, even if the charity were permitted to discriminate in reliance upon s.193 of the 2010 Act, the Public Sector Equality duty would be likely in due course to impact upon the willingness of local authorities to work with a charity which discriminated on.
69.
(2002) 35 EHRR 306. See, also, Moscow Branch of the Salvation Army v. Russia, (2007) 44 EHRR 46, paras 58–9.
70.
Citing Hasan & Chaush v. Bulgaria (2002) 34(6) EHRR 1339.
71.
Citing United Communist Party of Turkey and Others v. Turkey, judgment of 30 January 1998, Reports 1998-I, at p. 27.
72.
Citing Serif v. Greece, no. 38178/79, § 53, ECHR 1999-IX.
73.
Catholic Care (Diocese of Leeds) v. The Charity Commission for England and Wales [2011] EqLR 597.
74.
The Tribunal noted that the Public Sector Equality duty imposed by s.149(1) of the Equality Act 2010 required public bodies to pay due regard to the need to eliminate unlawful discrimination and to promote equality of opportunity.
75.
In July 2002, the General Synod resolved: that this Synod
1. a)
  Affirm in accordance with the doctrine of the Church of England as set out in Canon B 30, that marriage should always be undertaken as a “solemn, public and life-long covenant between a man and a woman”.
76.
The Charter of Fundamental Rights was signed on 7 December 2000 and became binding in December 2009.
77.
Application no. 30141/04, Council of Europe: European Court of Human Rights, 24 June 2010.
78.
Ibid, at para 61.
79.
Ibid at para 99.
80.
The Church of England, as the established Church, will be able of its own accord, under the Church of England Assembly (Powers) Act 1919, to bring legislation before Parliament to enable it to ‘opt in’.
81.
28957/95 [2002] ECHR 588 (11 July 2002), at para 90: citing Pretty v. the United Kingdom, no. 2346/02, judgment of 29 April 2002, at p. 62, and Mikulić v. Croatia, no. 53176/99, judgment of 7 February 2002, at p. 53.
82.
Note that the ordination of women bishops is expressly prohibited by Canon C2 Of the consecration of bishops:
1. 5.
  Nothing in this Canon shall make it lawful for a woman to be consecrated to the office of bishop.
83.
1602844/2006, (April 2007). The Tribunal in this case found it to be an agreed fact that the teaching of the Church of England with regard to homosexuality is to be found in the following documents:
1. (a)
  a resolution of the General Synod dated 14 July 1997;
2. (b)
  a resolution of the General Synod dated 11 November 1987;
3. (c)
  resolution 1.10 of the Lambeth Conference 1998;
4. (d)
  Issues in Human Sexuality, a statement by the House of Bishops of the General Synod of the Church of England, dated December 1991;
5. (e)
  Some Issues in Human Sexuality, a guide to the debate (2003); and
6. (f )
  A Companion to Some Issues in Human Sexuality 2003.
84.
See, R (Weaver) v. London & Quadrant Housing Trust [2009] EWCA Civ 587; [2008] EWHC 1377 (Admin); [2008] WLR (D) 207. In November 2009 the Supreme Court rejected the appeal application of London & Quadrant Housing Trust to the House of Lords. See, also Poplar Housing and Regeneration Community Association Ltd v. Donoghue [2001] EWCA Civ 595, [2002] QB 48, where the decision that the Association was exercising “functions of a public nature” was largely attributable to the fact that the local council was heavily represented on the Association’s board and controlled its tenancy arrangements; and Bath Festivals Trust Ltd v. Revenue and Customs [2008] UKVA V20840, where it was held that when the activities of a trust, which had taken over the provision of services previously the responsibility of the local authority, fell within the scope of the council’s strategy relating to the promotion or improvement of the social wellbeing, the trust was acting as a public authority.
85.
[1997] 3 CMLR 630.
86.
Cali & Figli SrL v. SEPG [1997] ECR I-1547, [1997] 5 CMLR 484 at para 23.

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The Australian Centre for Philanthropy and Nonprofit Studies, Queensland University of Technology, Brisbane, Australia
Kerry O’Halloran

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O’Halloran, K. (2014). The Impact of Human Rights. In: The Church of England - Charity Law and Human Rights. Ius Gentium: Comparative Perspectives on Law and Justice, vol 36. Springer, Cham. https://doi.org/10.1007/978-3-319-04319-7_7

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DOI: https://doi.org/10.1007/978-3-319-04319-7_7
Published: 11 January 2014
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