Human Rights and the Freedom of Religion

Isabel Bathurst is a qualified solicitor with a Diploma in Advanced Litigation; she specializes in personal injury and clinical negligence cases. Isabel has been an active member of the London Lawyers Christian Fellowship since 1997.

What does the Human Rights Act 1998 mean for you as a Christian?
On 2 October 2000 the Human Rights Act 1998 came into force. The Act brought power to the English Courts to make legal decisions on basic liberties. Fifty years ago Britain helped to enshrine our basic liberties into the European Convention on Human Rights, a treaty passed by the Council of Europe. Following the Second World War, Sir Winston Churchill invited a group of nations to come together to stop such atrocities and acts of cruelty, as had been evidenced during the War, from ever happening again.

The Human Rights Act 1998 incorporates the ECHR into domestic law by providing a remedy in domestic courts for breaches of the ECHR. The effect is that individuals are now able to assert their basic rights by taking cases on Human Rights issues to the English Courts.

According to the Rt. Hon. Jack Straw MP: ‘The HRA 1998 is the most significant statement of human rights in domestic law since the 1689 Bill of Rights. It will strengthen representative and democratic government. It will do so by enabling people to challenge more easily the actions of the state if they fail to match the standards set by the ECHR.’

The Labour Government, in its 1997 election manifesto, promised a government committed to the protection of human rights. To this end the HRA was passed. The background to the Act is set out in Allen & Thompson ‘Rights brought home: The Human Rights bill (1997, White Paper), together with the original Labour Government proposals.

What does the Human Rights Act do?
a. it makes it unlawful for a public authority, such as a government department, local authority or the police, to breach the Convention rights
b. cases can be dealt with in a UK court or tribunal and no longer need to be dealt with at the European Court of Human Rights in Strasbourg
c. UK legislation must now, where possible be given a meaning that fits with the Convention rights.

There are sixteen basic rights in the Human Rights Act, all taken from the European Convention on Human Rights. These rights affect matters of life and death such as freedom from torture and killing. They also affect your rights in everyday life in terms of what you are able to say and do, your right to a fair trial and perhaps of most concern to us as Christians, your beliefs.

The Human Rights Act is intended to respect rights and balance responsibilities. The onus is on government bodies to comply with the Act and so individuals cannot sue directly. However, all laws passed by Parliament must now be given a meaning and effect which is as close as possible to the Convention Rights, therefore individuals may be affected indirectly. Most of the rights in the Human Rights Act have boundaries to prevent them unfairly affecting the rights of others. The Act means that we all have to accept some limits to our rights so that others are treated fairly. For example, the right to liberty may have to be restricted where an individual has committed a criminal offence punishable with a sentence in prison.

Courts and tribunals must take into account Convention case law when determining questions that arise in connection with the Convention. However, Convention case law is persuasive and not binding, so that UK case law may legitimately diverge from Strasbourg case law.

The Act provides that, so far as possible, all existing and future legislation must be construed to be compatible with the ECHR. Moreover, when the meaning of legislation is ambiguous, obscure or may lead to absurdity, reference can be made to the records of speeches in Parliament as to the meaning of the legislation. Judges must now interpret legislation to be compatible to the Human Rights Act 1998. Despite this, where legislation cannot be construed to give effect to Convention rights, the higher courts can grant Declarations of Incompatibility. The supreme legislative powers of Parliament are preserved. The courts have no powers to strike down Acts of Parliament which are manifestly inconsistent with the Convention.

Article 9: Freedom of thought, conscience and religion
Under this Article, you are free to hold a broad range of views, beliefs and thoughts, as well as religious faith. Limitations are permitted only in specified circumstances. Our focus as Christians is to look at how the Court system in England and Wales can affect our own beliefs.

The effect of Article 9 can best be illustrated by case law.

For example, in the case of Stedman v UK 1997 when an employee sought the help of the court to assert his right to not work on Sundays, the court held that Christians have no employment rights on this issue, as they have no right to go to Church on Sundays if their employer refuses to give permission.

Let us take a closer look at the secular courts analysis in the case of R (Williamson) v SoS Education.

The appellants in this case involved teachers and parents who send their children to a number of independent private schools established specifically to provide Christian education based on biblical observance. It was a feature of the regime administered by the teachers at all of these schools that in appropriate cases discipline would be enforced by the use of corporal punishment, an arrangement to which all of the parents agreed. They stated that the use of corporal punishment is based upon Christian principles. The essence of the appellants’ beliefs was summarised to the court as follows:

‘It is a central tenet of the Christian religion that mankind is born with a heart inclined to evil; disciplining in the educational context is therefore vital. It is not an ‘optional extra’, but corporal punishment is expressly sanctioned, approved and may be necessary. Judicial notice can be taken that current views on the approach to educational requirements of children are contrary to orthodox Christian teaching.’

In evidence, Mr Williamson, the headmaster the Christian Fellowship School, Liverpool, said:

‘All teaching staff, and all parents have made considerable sacrifices to place their children within a Christian education, which has strict observance to the Bible according to their religious beliefs. As part of our beliefs we believe it is an integral part of the teaching and education of children both by their parents, and by teachers, that physical discipline should be administered if and when appropriate. Obviously such punishment must always be within the law, and no person concerned with the case has ever been involved in any criminal offence involving the punishment of children, abuse or otherwise. Unfortunately, when putting these beliefs forward, we are often accused of abusing children which is wholly untrue without foundation and an attack on the exercise of our religious beliefs.’

A more detailed account of the perceived justification for the practice was given by Mr KG Jones, the Principal of the Maranatha Christian School, who had given evidence in an earlier application to the ECHR in Strasbourg:

‘The Bible and a 1000 years of British history, that rests on it, provide significantly compelling reasons to use loving corporal correction to train a child. Train up a child in the way he should go and when he is old he will not depart from it [Book of Proverbs, 22.6]. Foolishness is bound up in the heart of a child, but the rod of correction will drive it far from him [Proverbs, 22.15]. Do not withhold correction from a child for if you beat him with a rod, he will not die.You shall beat him with a rod and deliver his soul from hell [Proverbs, 23.14]. In sum, it is an essential of the Christian faith that loving corporal correction be utilised in the development of Christian character in my pupils. Further, it is a basic of religious liberty that the parents whom I serve be permitted to delegate to the School the ability to train children according to Biblical principles.’

Reliance was also placed before the judge, and before us, on Proverbs 13.24:

‘He who spares the rod hates his son, but he who loves him is diligent to discipline him.’

It was the general view of the appellants that the justification for, or requirement of, their practices came from those scriptural sources, specifically from the book of Proverbs.

The relief sought by all of the claimants was a declaration that:

‘Section 548 of the Education Act 1996 as amended does not prevent a parent delegating to a teacher in an independent school the right to administer physical punishment. A teacher who so administers physical punishment on the basis of an expressed delegation by a parent in writing, does not act unlawfully or unprofessionally’.

The court considered whether section 548, prevents teachers administering corporal punishment in these schools. It considered the obligations of the United Kingdom under the Convention.

It is concerning to note that the Judge concluded as follows:

‘As a general background to consideration of the specific issues in the case, it has to be noted that the evidence of the beliefs and practices of the parents and the teachers reveals a significant degree of unclarity as to the basis upon which corporal punishment is inflicted, and disagreement as to the implementation in practice of the beliefs asserted. However, whatever conclusions as to the content and nature of their beliefs may follow from the analysis that is referred to above, neither the teachers, in inflicting corporal punishment, nor the parents in supporting its infliction within the school, manifest those beliefs in the sense of that expression as it is used in article 9(1) of the Convention. Article 9 is not, therefore, engaged in this case in any event.’

The Judge sought to investigate the meaning of the Bible verses quoted. The appellants strongly criticised any investigation on the part of the court. They stated that a secular court, faced with an assertion of a religious belief, must take that stated belief at face value, and, except at least in extreme cases, should not seek to adjudicate upon its basis or validity.

The Judge said:

‘Any fair reading of those texts indicates a regime very different from that which the appellants practice and ask this court to authorise. The relevant part of article 9 relied on by the appellants is freedom to manifest religion or belief. Section 548 does not interfere with anyone’s freedom to believe in, or to seek to persuade others to believe in, the merits of corporal punishment, whether on religious or on secular grounds.’

Article 9 is therefore only engaged if the teachers when inflicting corporal punishment, and the parents when supporting them in that action, are manifesting their religion or beliefs.

So what does Article 9 protect? The Court’s view of the limits of article 9 within worship, teaching and ritual is reinforced by the authority that it cited in Jewish Liturgical Authority and also the case of, Kalac v Turkey (1997) 27 EHRR 522, where the Court said:

‘Article 9 lists a number of forms which manifestation of one’s religion or belief may take, namely worship, teaching, practice and observance. Nevertheless, Article 9 does not protect every act motivated or inspired by a religion or belief.’

In X v United Kingdom, the Commission said that article 9 protects acts:

‘Which are intimately linked to [religious] attitudes, such as acts of worship and devotion which are aspects of the practice of a religion’

In summary, in the Williamson case, the Court of Appeal ‘helpfully’ explained to Evangelical Christians that they had misinterpreted the Bible and the secular court would give them the correct interpretation! However, it did explain the extent to which the Human Rights Act would help Christians. It is a relief that we may still worship, teach, practice and observe our beliefs, even though the secular court cannot yet accept the practice of our beliefs in certain circumstances. Yet ought we to leave it to the secular courts to interpret the Bible for us?

Given that our right to worship is accepted by the court but that certain religious practices are not, we should perhaps not be too concerned with the secular court’s approach. However. compare this approach to the interpretation of the Human Rights Act to the cases on homosexuality. In Smith v Grady UK 1999, four homosexuals in the British armed forces were granted full employment rights despite the fact that they knew in advance the army’s restriction on homosexuals amongst the ranks.

It appears therefore that Christians are afforded very few rights as compared to the rights of homosexuals. This is a dangerous state of affairs. It is very hard indeed to understand as a matter of rational law as the principles of the Human Rights Act are not applied consistently. The difficulty is that Human Rights law evolves on a case by case basis rather than the common law established in the UK. This case by case analysis appears to have achieved nothing but bizarre judgements as far as Christians are concerned. Our hope is that the judiciary are increasingly influenced by Christians in their thinking to overturn the depressing decisions afforded in recent history.

Human Rights
An introduction published by the Home Office states that tolerance and broad-mindedness are the bedrock of democracy and the bedrock of Convention rights. There’s the rub. As Christians, this causes us difficulty because the rights afforded by the Human Rights Act are not going to assist in asserting our beliefs in practice, as has been shown in the above and other cases.

The Bible is our law and we are well aware of the persecutions we face. But what hope is that? As Christians our Lord Jesus Christ tells us that we are the light. We must assert what we know to be true and continue to be guided by our Father rather than rely on secular laws. Are we then to reject the Human Rights Act out of hand?

As Jesus is meek and lowly, persecuted but never persecuting, then we can expect a different world view enshrined in an act of parliament. As he states at his own trial,

‘My kingdom is not of this world’ [John 18:36].

Jesus said,

‘Love your enemies, bless those who curse you, do good to those who hurt you and pray for those who persecute you, that you may be sons of your father in heaven.’[Matthew 5:44-45].

We can then be content that our law allows us at least to continue to worship our Lord, even though our expectation that secular laws will extend to the law stated by Jesus may be too hopeful. Whilst continuing to strive to educate our lawmakers, Christians need to remember the promise that Christ left us:

‘Blessed are you when people insult you, persecute you and falsely say all kinds of evil against you because of me. Rejoice and be glad, because great is your reward in heaven’ [Matthew 5:11-12].