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Underrating Human Rights: Gallagher v Church of Jesus Christ of Latter-day Saints

  • Russell Sandberg (a1) (a2)

Extract

The Human Rights Act 1998 has led to an increase in domestic litigation concerning Article 9 of the European Convention on Human Rights (ECHR). Most such cases have been unsuccessful, particularly at higher level. Moreover, such claims have increasingly failed due to lack of interference under Article 9(1) rather than on grounds of justification under Article 9(2). This has meant that litigants in religious dress cases are now arguing anything but Article 9: the most recent case, concerning the wearing of the Sikh Kara in Aberdare, was successful because, while the school saw the issue as one concerning Article 9, the claimant's legal team relied instead on race and religious discrimination laws. It is not surprising, therefore, that the House of Lords rejected the most recent argument made on grounds of Articles 9 and 14. It is the merits of that argument and the haste displayed in its rejection that are the focus of this brief comment.

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1 I am grateful to my colleagues at the Centre for Law and Religion, especially Professor Norman Doe, Professor Mark Hill and Frank Cranmer for their invaluable guidance.

2 Such an increase was foreseen by commentators: see, for example, Hill, M ‘A new dawn for freedom of religion’ in Hill, M (ed), Religious Liberty and Human Rights (Cardiff, 2002), p 13 and Bradney, A, ‘Faced by faith’ in Oliver, P, Douglas-Scott, S and Tadros, V (eds), Faith in Law (Oxford, 2000), p 104 .

3 R v Secretary of State for Education and Employment and others ex parte Williamson [2005] UKHL 15; R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15.

4 Compare the decision of the High Court in R (on the Application of Swami Suryananda) v Welsh Ministers [2007] EWHC (Admin) 1736 with that of the Court of Appeal: [2007] EWCA Civ 893. Also compare the House of Lords decision in Begum with that of the Court of Appeal: [2004] EWHC 1389.

5 For analysis, see Hill, M and Sandberg, RIs nothing sacred? Clashing symbols in a secular world’, (2007) Public Law 488506 and Sandberg, RControversial recent claims to religious liberty’, (2008) 124 Law Quarterly Review 213217 .

6 R (on the application of Watkins-Singh) v The Governing Body of Aberdare Girls' High School [2008] EWHC (Admin) 1865.

7 See para 3 of Silber J's judgment.

8 [2008] UKHL 56.

9 [1964] AC 420.

10 [2008] UKHL 56, para 16.

11 Gallagher v Church of Jesus Christ of Latter-day Saints [2006] EWCA Civ 1598. These arguments were first raised in the petition for leave to appeal to the House of Lords.

12 [2008] UKHL 56, para 13.

13 Ibid, para 14.

14 Ibid, para 31.

15 Ibid, para 12.

16 Ibid, para 15.

17 Article 1 of Protocol 12 extends this to ‘any right set forth by law’ but this has not been ratified in the UK. See Ahdar, R and Leigh, I, Religious Freedom in the Liberal State (Oxford, 2005), p 109 .

18 Taylor, PM, Freedom of Religion (Cambridge, 2005), pp 182183 .

19 Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (1979–80) 1 EHRR 252 at 282.

20 Ibid: ‘A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realised.’ See also Igleisa Bautista and Ortegra Moratilla v Spain (1992) 72 DR 256, para 2.

21 Darby v Sweden (1991) 13 EHRR 774, para 31.

22 It could be argued that the analysis of Article 9 here is also flawed. In a series of judgments, the Strasbourg Court has held that ‘the ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning’: Religionsgemeinschaft der Zeugen Jehovas and Others v Austria (2008), application no 40825/98, 31 July, para 62.

23 (2001) 31 EHRR 15.

24 See [2008] UKHL 56, para 12.

25 (2001) 31 EHRR 15, para 42.

26 Ibid, para 43.

27 Ibid, para 44. The Court also recognised that there would be a violation where ‘States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different’ (ibid). For a discussion of this, see Taylor, Freedom of Religion, pp 189–190.

28 Their approach also seems to contradict the guarantees of s 13 of the Human Rights Act 1998 but this may simply be seen as indicative of the shallowness of that provision: see Hill and Sandberg, ‘Is nothing sacred?’, pp 492–493.

29 (2001) 31 EHRR 15, para 49.

30 Ibid, paras 49–50.

31 Ibid, para 51.

32 Ibid.

33 [2006] EWCA Civ 1598 at para 31.

34 In fairness to Neuberger LJ, the human rights points had not been argued before him, and first appeared in the petition to the House of Lords for leave to appeal.

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