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Article 9 of the European Convention on Human Rights and Protected Goods

  • Gideon Cohen (a1)

Article 9 of the European Convention on Human Rights protects manifestations of religion or conscience from interference under Article 9(1) except insofar as such interferences can be justified under Article 9(2). This analysis asks when Article 9 will protect believers who are forced to choose between religious observance and pursuit of secular ‘goods’ and offers some conclusions about how the protection of believers from forced choices compares with the protection of manifestations of religious belief. It also considers whether cases where believers are asked to choose between religious obligations and protected goods raise particular issues under 9(2). Finally, the conclusions arrived at are applied to an illustrative hypothetical example. The objective is to demonstrate the potential reach of 9(1), and to explore the 9(2) analysis specific to protected-good cases.2

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3 This stage is not as straightforward as it sounds. For instance, not every religious manifestation counts. In R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, HL, Lord Nicholls requires consistency ‘with basic standards of human dignity or integrity’ (at para [23]).

4 R (Begum) v Headteacher and Governors of Denbeigh High School, [2007] 1 AC 100, HL, at para [24].

6 See, for example, E Komorek, ‘Is media pluralism? The European Court of Human Rights, the Council of Europe and the issue of media pluralism’ (2009) EHRLR 395.

7 R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] 1 AC 1312, HL.

8 See, for example, Knights, S, Freedom of Religion, Minorities and the Law (Oxford, 2007), p 43: ‘The terms of Article 9(1) suggest that it primarily relates to the positive right of the individual to exercise a particular belief’.

9 See, for example, Refah Partisi (The Welfare Party) v Turkey (No. 1) (2002) 35 EHRR 3, at para [49]. Detailed probing of why Article 9 might endorse this approach is beyond the scope of this article. See, though, Malik, M, ‘Minority protection and human rights’ in Campbell, T et al. (eds) Sceptical Essays on Human Rights (Oxford, 2001), pp 277294: ‘[W]ithin the generic term “liberalism” which is associated with the ECHR, there is a vast difference between the neutrality-based arguments of anti-perfectionists and the appeal to the “wellbeing and the good” which underlies the work of perfectionist liberal writers’. Trying to bring about a society of positive pluralist participation is, in these terms, ‘perfectionist’.

10 Jewish Liturgical Association Cha'are Shalom Ve Tsedek v France (2000) 9 BHRC 27, ECHR.

11 Paras [81]–[83].

12 Para [80].

13 R (Williamson) v Secretary of State for Education and Employment, [2005] 2 AC 246, HL.

14 As amended by the School Standards and Framework Act 1998.

15 At para [41].

16 The objection that guaranteeing access to education is required by Protocol 1 Article 2 of the ECHR, and that Article 9 is therefore not picking out the good as deserving of protection, is dealt with below (in the discussion of Begum).

17 At para [78].

18 Per Lord Nicholls, at para [10].

19 His lordship refers to a perceived need ‘to train children according to biblical principles’.

20 Applied in, for example, R (X) v Headteachers and Governors of Y School [2007] HRLR 20.

21 Lord Bingham at para [25]; Lord Hoffmann at para [50]; Lord Scott at para [89].

22 Para [52].

23 Para [41].

25 Lord Bingham, as above, at paras [23]–[25], Lord Hoffmann at paras [51]–[52].

26 See, for example, Lord Hoffmann at para [69].

27 Sahin v Turkey (2005) 41 EHRR 8, at para [71].

28 Sahin v Turkey (2007) 44 EHRR 5, at paras [71] and [78].

29 At para [59]. His lordship's analysis of Sahin has been disputed: see G Davies, ‘The House of Lords and religious clothing in Begum v Headteacher and Governors of Denbigh High School’ (2007) 13 EPL 423, 428. The crucial point for the purposes of this article, though, is not what Sahin said, but what the discussion of Sahin reveals about the reasoning of the majority in Begum.

30 N Gibson, ‘Faith in the courts: religious dress and human rights’ (2007) 66 CLJ 657, 668.

31 Copsey v WWB Devon Clays Ltd, [2005] EWCA Civ 932, [2005] HRLR 32.

32 Para [35]. It should be noted that some of this criticism is out of date following the House of Lords' decision in Begum.

33 Para [36].

34 Ahmad v United Kingdom (1981) 4 EHRR 128.

35 Konttinen v Finland (1996) 87 D & R 68.

36 Stedman v United Kingdom (1997) 23 EHRR CD #168.

37 Para [31].

38 At para [35], in comments agreed with by Rix LJ at para [62].

39 Paras [65]–[66]. Neuberger LJ, at para [90], thought Article 9 was irrelevant, so there is no conclusion on whether keeping one's job can ever be a protected good.

40 Para [69].

41 Implicit initial acceptance of the uniform code was emphasised in Begum, but only by Lord Bingham (at para [25]) and Lord Scott (at paras [76]–[78]). Counsel in R (X) v Headteachers and Governors of Y School [2007] HRLR 20 attempted to interpret Begum as making such a commitment necessary (not, as in employment cases, sufficient) to preclude any finding of interference in education cases. He failed: Silber J at paras [26]–[40].

42 Attacked by Rix LJ, even in the more moderate form in which he accepts its binding force, at para [60].

43 Gallagher (Valuation Officer) v Church of Jesus Christ of Latter-day Saints [2008] 1 WLR 1852, HL.

44 This rather vague requirement will be discussed more fully in due course. For present purposes, the point is that it is easier to come within the ‘ambit’ of an Article than directly within the Article.

45 Para [13].

46 See Lord Bingham in Begum, para [6]. The European case law on this point is inconclusive: see S Stavros, ‘Freedom of religion and claims for exemption from generally applicable, neutral laws: lessons from across the pond?’, (1997) 6 EHRLR 607.

47 Secretary of State for the Home Department v JJ [2008] 1 AC 385, HL.

48 See, for example, Lord Walker in Williamson, at para [60]. Exceptionally unappealing practices will be excluded from Article 9 protection as explained by Lord Nicholls in Williamson: see footnote 3 above.

49 See A v Secretary of State for the Home Department [2005] 2 AC 68, HL: ‘The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution … Conversely, the greater the legal content of any issue, the greater the potential role of the court.’ (Lord Bingham at para [29]). Particularly inappropriate for judicial decision are ‘matters of social and economic policy, where opinions may reasonably differ in a democratic society and where choices on behalf of the country as a whole are properly left to government and to the legislature’ (Lord Hope at para [108]). See also Bellinger v Bellinger [2003] 2 AC 467, HL, where a decision about the definition of gender was ‘altogether ill-suited for determination by courts and court procedures’ – ‘Questions of social policy and administrative feasibility arise at several points, and their interaction has to be evaluated and balanced’ (Lord Nicholls at para [37]).

50 Perhaps the courts could make a decision on narrow legal grounds, and leave Parliament to correct what it does not like. But this seems rather a stunted role to give the Human Rights Act in general and Article 9 in particular.

51 The speech is reproduced as ‘Civil and religious law in England: a religious perspective’, (2008) 10 Ecc LJ 262. Quote at p 270.

52 Currently under section 1 of the Arbitration Act 1996.

53 Under section 66 of the 1996 Act.

54 It is not necessary to be too specific about what this might be. Suffice it to say that the law on illegality is brimming with difficult cases (which will be discussed in due course) even before any ambiguities in the contract are allowed for.

55 Under section 68(2)(g) or section 81(1)(c) of the Act.

56 Soleimany v Soleimany [1999] QB 785, CA. This was decided under the pre-Arbitration Act law. However, as was clear from the court's straightforward citation of Soleimany in Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [2000] QB 288, CA, on this point the Act merely codified existing law.

57 [1999] QB at p 800.

59 Westacre Investments Inc v Jugoimport-SPDR Holding Co Ltd [2000] QB 288.

60 pp 316–317. RH Kreindler, ‘Aspects of illegality in the formation and performance of contracts’, (2003) 6 Int ALR 1, 18–19, notes that (despite Waller LJ's dissent in Westacre) the decisions in Soleimany and Westacre do not contradict each other.

61 p 316. It should also be noted that Sir David Hirst agreed with Mantell LJ's judgment.

62 Babylonian Talmud (hereafter ‘BT’) Gittin 78a.

63 Shulhan Arukh section Choshen Mishpat (hereafter ‘Choshen Mishpat’) 26:1.

64 This is because non-Jewish law will not be recognised in a dispute between Jews where halakha has taken a position on a question (see gloss 39 of the Shach to Choshen Mishpat 73).

65 See especially a very prominent recent authority, Rabbi A Karelitz (1878–1953), in section 15:4 of his commentary on BT Sanhedrin, and in Essay 16 of his commentary on Choshen Mishpat.

66 Although there is no obligation to commit an illegal act to fulfil a contract, the mere fact that a contract requires the commission of an illegal action does not make it void. So, for example, when a transaction is prohibited – to both lender and borrower – because of usury, the lender cannot demand payment of interest as per the contract, but the borrower can claim back interest he has already paid. The contract is valid. The lender is demanding that an offence be committed; the borrower is not. See BT Bava Metzia 61a.

67 Waller LJ in Soleimany, at p 800.

68 One might ask what, in this situation, halakha would have the secular court do: even if it upholds the contract, by offering its services to the litigants it is enabling them to contravene Jewish law. The answer is simple. Halakha concerns itself with relations between Jews and the secular courts, but not the reverse. It seeks to impose no obligations on those courts and asks for nothing from them.

69 To avoid complications, the assumption will be made that it is clear under the contract that one of the parties must be paid, and that the only difficulty is working out which one. There would be nothing wrong with an award which ignored illegality but decided against a payout on other grounds.

70 Of course, the secular court faced with an appeal of this kind against a Beth Din arbitration award is also unable to cut the Gordian knot presented by halakha; a refusal to uphold the contract enables the circumventing of the Beth Din decision through the secular court, but upholding the contract would also endorse use of a secular court, albeit to affirm the Beth Din's decision. In halakha's own view, though, this is not an issue: obligations are imposed on Jews in their relationship with secular courts, but not the reverse.

71 Waller LJ, at p 800.

72 Assets to enforce against must be found. The signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards generally come down against enforcing illegal contracts (see Pietro, D Di and Platte, M, Enforcement of International Arbitration Awards: The New York Convention of 1958 (London, 2001), pp 184185).

73 M Hill and R Sandberg, ‘Is nothing sacred? Clashing symbols in a secular world’ (2007) PL 488, 506. See also P Cumper, ‘The protection of religious rights under section 13 of the Human Rights Act 1998’ (2000) PL 254, 254: ‘Incorporation of the ECHR … means that the principle of religious freedom has, for the first time, been codified as a cardinal feature of British law’.

74 Refah Partisi (The Welfare Party) v Turkey (No 2) (2003) 37 EHRR 1 does, at paras [127]–[128], seem to distinguish between matters of ‘individual conscience’, which are ‘primarily’ the focus of Article 9, and ‘the field of private law, which concerns the organization and functioning of society as a whole’. This emphasis is neither conclusive (‘primarily’), nor argued in detail or from principle. See also J Rivers, ‘Law, religion and gender equality’, (2007) 9 Ecc LJ 24, especially p 44.

75 See Elon, M, ‘The legal system of Jewish law’, (1985) 17 Journal of International Law and Politics 221, 222. On the specific importance of the lack of a doctrine of illegality, and its connection to broader themes in halakha, see M Silberg, ‘Laws and morals in jewish jurisprudence’, (1961–62) 75 Harvard LR 306, 320–321.

76 For a relevant discussion, see Hong-lin Yu, ‘Explore the void – an evaluation of arbitration theories: Part 1’, (2004) 7 Int ALR 180.

77 For a curt dismissal of a Human Rights Act challenge to application of the illegality doctrine, see Mahmud Al-Kishtaini v Fakhry Ibrahim Shanshal [2001] 2 All ER (Comm) 601, paras [50]–[59]. The Court of Appeal said that the public interest exception to the operation of Protocol 1 Article 1 (the right to property) was satisfied.

78 Para 3.55.

79 See, for example, para 3.57.

80 Jackson, SA, ‘Legal pluralism: between Islam and the Nation-State: romantic medievalism or pragmatic modernity?’ (2006–2007) 30 Fordham International Law Journal 158, 162.

81 See Danchin, PG, ‘Suspect symbols: value pluralism as a theory of religious freedom in international law’, (2008) 33 Yale Journal of International Law 1, esp. pp 1415 and p 57. See also Kukathas, C, ‘Liberalism and multiculturalism: the politics of indifference’, (1998) 26 Political Theory 686, 695. He argues that liberalism ‘cannot accommodate views that insist a state be dedicated to the pursuit of some substantive goal that is to be embodied in the structure of that political society’. How would the version of legal pluralism portrayed here meet this test?

82 Incidentally, this question is canvassed by the European Court of Human Rights in discussing a much more direct and ambitious form of legal pluralism than this article has mooted: Refah Partisi (The Welfare Party) v Turkey (No 1) (2002) 35 EHRR 3 and (No 2) (2003) 37 EHRR 1 (in the Grand Chamber). Concerns about such a system were emphasised by the Chamber at para [70], and by the Grand Chamber at para [119].

83 Albeit within the framework of the Human Rights Act 1998, a United Kingdom Statute. See A Tucker, ‘The Archbishop's unsatisfactory legal pluralism’ (2008) PL 463, 469.

84 Habermas, J, ‘Struggles for recognition in the democratic constitutional state’ (trans by Nicholsen, S Weber) in Gutmann, A (ed) Multiculturalism: Examining the Politics of Recognition (Princeton, 1994), pp 107148. See also Packer, J, ‘Problems in defining minorities’, in Fottrell, D and Bowring, B (eds) Minority and Group Rights in the New Millennium, (The Hague, 1999), pp 223273, especially at p 241, for a discussion of whether there is a sharp distinction between group and individual rights.

85 See Shachar, A, ‘Privatising diversity: a cautionary tale from religious arbitration in family law’, (2008) 9 Theoretical Inquiries in Law 573, esp. p 588 and S Bano, ‘In pursuit of religious and legal diversity: a response to the Archbishop of Canterbury and the “Sharia debate” in Britain’ (2008) 10 Ecc LJ 283, esp p 303, raising this concern, albeit specifically in the context of tribunals dealing with family law.

86 See Shachar, p 603. One, perhaps unsurprising, lesson of the Canadian Sharia Tribunal saga is that it is very difficult to justify giving different religious groups different arbitration opportunities.

87 M v Secretary of State for Work and Pensions [2006] 2 AC 91, HL, per Lord Walker at para [58].

88 Ibid, at para [14].

90 R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, HL, at para [13].

91 The requirements set out by Brooke LJ in Wandsworth London Borough Council v Michalak [2002] 4 All ER 1136, [2003] 1 WLR 617, CA, at para [20] would therefore be satisfied. The discrimination would be within the ambit of a Convention provision (Article 9), and the treatment of a non-Jew in an analogous situation would have been different. Whether there is a ‘legitimate aim’ pursued in a proportionate way is considered shortly.

92 Sumukan Ltd v Commonwealth Secretariat [2007] Bus LR 1075, at para [57].

93 At para [59].

94 R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, HL.

95 Para [17].

96 Para [18].

97 A legitimate aim and proportionate measures to achieve that aim are looked for. These are the same requirements made under 9(2). At this stage, opposing legitimate aims cannot both be accommodated; pursuit of one must be disproportionate in that it forces us to abandon the other.

98 See TRS Allan's discussion of the rule of law in Law, Liberty, and Justice: the legal foundations of British constitutionalism (Oxford, 1993), pp 44–45: ‘I have suggested that the common law requirement that like cases should be decided alike may be understood to embody a fundamental component of its underlying philosophy – the idea of equality…That fundamental idea of political morality is violated by laws which treat people differently when their different treatment cannot be justified in principle’.

99 See Macklem, P, ‘Militant democracy, legal pluralism, and the paradox of self-determination’, (2006) 4 International Journal of Constitutional Law 488, 489–490.

100 This may be the most striking inequality between the two claims, but it is not the only one. A protected-good Article 9 claim is being pitted against the other party's desire to be left free to challenge enforcement of an arbitration award. This might be phrased, with reference to Hohfeld, as the difference between a ‘right’, which places a duty on the other party to the contract to pay, and a more basic ‘privilege’, which simply means that that other party is allowed to challenge the award, and does not place any specific duty on the original party. See Hohfeld, WN, Fundamental Legal Conceptions as Applied in Judicial Reasoning, edited by Campbell, D and Thomas, PA (Aldershot, 2001), pp 1121.

1 This article is based upon a paper submitted by the author as part of the law tripos at the University of Cambridge in 2009.

2 Thanks are due to many, but in particular to Dr Amanda Perreau-Saussine and David Cohen for their patient suggestions and criticism.

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Ecclesiastical Law Journal
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