The Bill of Frights?

Reform of human rights law is coming. Although the rationale behind the proposed new Bill of Rights does not directly concern freedom of religion or belief, the proposed changes are likely to have a significant effect – particularly in relation to the legal protection of non-religious beliefs. This article explores what we know about the new Bill of Rights so far and explores how it likely to impact freedom of religion or belief by reference to the human rights case law that has developed over the last twenty years. It argues that, although elements of that case law have been problematic, the proposed reform could be far worse and risks seriously undermining rights and protections. 

The Queen’s Speech

The Human Rights Act 1998 has long being a bugbear of the Conservative Party. The Queen’s Speech 2022 finally confirmed that legislation would be introduced to reform it.  Prince Charles, deputising for the sometimes immobilised Sovereign, read the words: 

‘Her Majesty’s Government will ensure the constitution is defended. Her Majesty’s ministers will restore the balance of power between the legislature and the courts by introducing a Bill of Rights.’

This raised the questions of by whom the constitution is under attack; what is currently imbalanced about the relationship between the legislature and the courts; and what supposed golden age of equilibrium is going to be restored. 

The answers to these questions are not apparently clear. Yes, there have been some controversial and perhaps questionable decisions since the Human Rights Act 1998 came into force. But what is controversial and questionable is necessarily subjective. 

It is possible to point to constitutional issues that have arisen in recent years that might be grounds for asserting that the constitution needs defending. These include the compliance with the Ministerial Code, rule-breaking by the very politicians making the Covid rules, the Conservative government’s willingness to break international law in relation to Brexit negotiations, the use of executive powers during the pandemic, and the Westminster government’s increasingly dismissive and outdated attitude towards the devolved institutions. 

However, it is unlikely that these were what Her Majesty’s Government had in mind. Rather, given the rhetoric of the Prime Minister and Home Secretary, the target seems to be ‘lefty lawyers’. In her speech to the Conservative Party Conference in 2020, Home Secretary Priti Patel pledged to bring about reform of asylum law and attacked ‘those defending the broken system – the traffickers, the do-gooders, the leftie lawyers, the Labour Party.’ In his speech at the same conference, Prime Minister Boris Johnson spoke of the need to stop ‘the whole criminal justice system from being hamstrung by what the Home Secretary would doubtless and rightly call the lefty human rights lawyers and other do-gooders’.

This attitude has existed for some time. Back in the Conservative Party conference of 2011, Theresa May, then Home Secretary, notoriously blamed human rights law for being used to avoid deporting an illegal immigrant because of his pet cat. The cat story proved to be untrue, but the Conservative attack on human rights laws and on ‘lefty lawyers’ generally has increased dramatically, no doubt inspired in part by the former profession of the current Leader of the Opposition. 

Human rights laws have also come in for criticism as part of the Brexit debate. Our human rights laws do not come from the European Union, although they are recognised in EU law. Rather, they come from the Council of Europe – an institution that is separate from the EU. The European Convention on Human Rights (ECHR) is a human rights treaty created by the Council of Europe, of which the UK remains a member, and policed by the European Court of Human Rights in Strasbourg. The Human Rights Act 1998 incorporated the ECHR into English law. Prior to the 1998 Act, if you wanted to enforce your Convention rights against the UK government, you would need to go to the Strasbourg court. Since the Human Rights Act, you can now bring such claims in domestic courts against any public authority – with ultimate appeal to the European Court of Human Rights in Strasbourg. The fact that the EU and Council of Europe are separate entities has not prevented human rights law and the ECHR being conflated with Brexit.

Despite calls by some Brexit campaigners, the reform of human rights law under the Bill of Rights proposal will not involve leaving the Council of Europe or scrapping the Human Rights Act in its entirety. Rather, it will involve a number of changes to the Act. These are likely to be stealthy but significant. There is no clear evidence that such tinkering is needed. The Government simply ignored responses to a recent consultation that largely rejected the need for and types of reform proposed.

There is a real risk that reform may weaken rather than strengthen human rights. In particular, reform could have a significant impact on freedom of religion or belief. ‘Freedom of religion or belief’ is protected under Article 9 of the ECHR. This includes the right to freedom of thought, conscience and religion: everyone has the absolute right to believe whatever they want. It also includes the right to manifest religion or belief in worship, practice, teaching and observance. This second aspect of the right, the ability to act upon your beliefs, is qualified. It can be limited where doing so is justified under Article 9(2). 

The purpose and benefits of the Bill

Although the Bill has not yet been introduced into Parliament, leaving unresolved the question of what it will be called (‘the Bill of Rights Bill’?), the 10 Downing Street briefing notes on the Queen’s Speech provide a two page summary of the purpose, benefits and main elements of the Bill.

To a considerable extent, the purpose and benefits of the Bill alleged by the briefing notes are political hyperbole. The Bill of Rights will apparently ‘end the abuse of the human rights framework and restore some common sense to our justice system’. The legislation will curb ‘the incremental expansion of a rights culture without proper democratic oversight, which has displaced due focus on personal responsibility and the public interest’, and will reduce ‘unnecessary litigation’ and avoid ‘undue risk aversion for bodies delivering public services’. 

This raises the question of what, if anything, constitutes ‘unnecessary litigation’. Given the dramatic cuts to legal aid, litigation is more than ever a last resort and indeed is outside the means of the majority of the population. 

The discussion of benefits of the Bill, however, suggests that the Government has two particular issues in mind. First, ‘defending freedom of speech by promoting greater confidence in society to express views freely, thereby enhancing public debate’; and second, ‘tackling the issue of foreign criminals evading deportation, because their human rights are given greater weight than the safety and security of the public.’

Yet despite the specificity of these concerns, and leaving to one side the question of whether they are justified, it seems that the approach of the Bill of Rights will be to overhaul the entire human rights framework in ways that will have dramatic and probably unintended consequences for other Convention rights such as freedom of religion or belief. This is clear in the four ‘elements of the Bill’ listed in the briefing notes.

The interpretation of the Strasbourg case law

The first main element of the Bill will be ‘establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.’

This proposal seems to be based on an erroneous understanding of the current law. The Human Rights Act 1998 already requires courts and tribunals to ‘take into account’ – though not necessarily follow – the jurisprudence of the European Court of Human Rights at Strasbourg (section 2(1)).This means that the case law of the Strasbourg Court that has developed detailed understandings and interpretations of Convention rights – such as freedom of religion or belief – is considered but not necessarily adapted by domestic courts. 

The Strasbourg case law is not particularly constraining – at least not in relation to freedom of religion or belief. Indeed, the case law already recognises and gives significant deference to differences that exist from State to State in interpreting and applying Convention rights. This is called the ‘margin of appreciation’. 

It is questionable whether the clarification that the briefing notes mention is necessary; indeed, it is likely to be damaging. If the obligation to take into account Strasbourg case law is removed, then this is likely to lead to more litigation against the UK at Strasbourg. The requirement that UK courts cannot ‘interpret rights in a more expansive manner than the Strasbourg Court’ means that where UK courts differ from Strasbourg, parameters and protections afforded by rights cannot be increased and so can only be reduced. This notably goes against the listed benefit of the Bill, that it will defend free speech, since it would mean that the domestic courts would be unable to protect freedom of speech in a more expansive manner than Strasbourg.

Such changes are likely to have a significant impact upon freedom of religion or belief. This is especially so since English law did not include a positive general right to religious freedom before the Human Rights Act 1998. Thus domestic courts have made significant use of the Strasbourg case law in understanding how to interpret the right to manifest religion or belief.

Indeed, the Strasbourg Court has played an important role in developing the understanding of the right to manifest religion or belief, and occasionally corrected domestic interpretations of the Strasbourg case law which were used to adopt overly narrow interpretations of the right to manifest. 

This concerned what is often referred to as the ‘specific situation rule’: the rule that there would be no interference with the Article 9 right to freedom of religion or belief where claimants had voluntarily agreed to a situation which limited their religious freedom. This might apply, for instance, if they had voluntarily signed a contract of employment that required them to work during times of religious observance.

A number of Strasbourg decisions had established that this rule existed where there was a contract of employment or equivalence, meaning that the person had voluntarily submitted to a situation where their right to manifest would be restricted. 

The domestic courts, however, began to understand this as a general principle that stated that there would be no interference with Article 9 where there were other means open to the person to practise or observe his or her religion. In the decision by what was then the House of Lords in R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15, it was held that a school uniform policy that prevented a pupil from wearing a jilbab at school did not interfere with her Article 9 rights, since she had the option to go to another school. Numerous other cases and tribunal decisions followed this logic and effectively held that Article 9 had no application in the workplace, since the claimant could always resign and get another job.

When claimants from a number of these employment tribunal decisions took their cases to Strasbourg, the European Court of Human Rights found that the UK had breached their Article 9 rights by employing this restrictive interpretation. These included a British Airways employee who was prevented from wearing a cross at work, a nurse who was also prevented from wearing a cross and a registrar who was not allowed to refuse to conduct civil partnership ceremonies.

In Eweida v UK (2013) 57 EHRR 8, the European Court of Human Rights noted that their previous case law had applied the ‘specific situation’ rule in relation to employees, but that it was not appropriate to do so, given that the Court had not taken this approach in relation to other Convention Rights. The Court therefore corrected both its own and the even narrower interpretation of Article 9 by domestic courts, holding that:

‘where an individual complains of a restriction on freedom of religion in the workplace, rather than holding that the possibility of changing job would negate any interference with the right, the better approach would be to weigh that possibility in the overall balance when considering whether or not the restriction was proportionate.’

The rule about the relationship between domestic courts and the European Court of Human Rights is already permissive. Weakening it further would mean that narrower and more restrictive approaches to the interpretations of rights would be likely to prevail.

The interpretation of laws

The second main element of the Bill will be ‘ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose “positive obligations” on our public services without proper democratic oversight by restricting the scope for judicial legislation.’

Thus while the first element suggests that the Bill is concerned with protecting the domestic courts, the second element undercuts this. It constrains the roles of the domestic courts by limiting the way in which they can interpret Acts of Parliament to read them in ways that are compliant with human rights. Again, this will lead to the reduction of rights. Parliament will not have the time to deal with statutory interpretation and the creation of any ‘positive obligations’. The legislature cannot realistically deal with particular issues, contexts and claims. Adjudication is, after all, the role of the courts. Such a change will mean that human rights will not be able to keep up with societal changes and so will wither. 

Like the first element, this second element seems to be based on a questionable interpretation of the current law. There is already proper democratic oversight built into the process.

The Human Rights Act 1998 requires legislation to ‘be read and given effect in a way which is compatible with the Convention rights’ (section 3(1)). It further provides that the courts can issue a declaration of incompatibility where they consider that domestic law cannot be interpreted in a way that is compliant with the Convention, leaving Parliament to change the law. Human rights law, therefore, already delicately balances power between the legislature and the courts. This is why it is likely that any rebalancing may have harmful consequences, both foreseen and not foreseen.

This is particularly likely to be true in relation to freedom of religion or belief, given that  Article 9 of the European Convention on Human Rights, which protects freedom of religion or belief, has quickly become the bedrock of this freedom in the UK. This does not only apply to Article 9 claims. Other areas of law, such as discrimination law, now rely upon Article 9 principles. For instance, in R (On Application of Harrison) v Secretary of State for Justice [2020] EWHC 2096 (Admin), Article 9 was relied upon in the argument that marriage law, in not giving legal effect to humanist weddings, was discriminatory and was only justified at the time because of the ongoing review of the law by the Law Commission.

Moreover, the requirement to interpret laws as far as possible in a Convention-compatible way has been particularly important in relation to protecting non-religious beliefs. Many older legal provisions protecting religion have been interpreted by courts and other bodies to include non-religious beliefs, precisely because freedom of ‘religion or belief’ is protected as a Convention right under Article 9. For instance, in May 2018, the then Education Minister in Wales, Kristy Williams, published a letter in which she stated that it was the position of the Welsh Government that, in order ‘to ensure compatibility with the Human Rights Act 1998’, the provisions relating to the composition of Standing Advisory Councils for Religious Education were to be interpreted to permit ‘the appointment of persons who represent holders of non-religious beliefs in the same way as they permit the appointment of persons who represent holders of religious beliefs.’

Weakening the Human Rights Act could mean turning back the clock in terms of recognising and protecting non-religious beliefs – and there will be countless other similar examples in relation to other Convention rights.

The interpretation of rights

The third and main element of the Bill will be ‘guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.’ The fourth element of the Bill is ‘recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award’.

The phrasing of the third element raises the question of what is a ‘spurious’ case. The domestic Article 9 case law already requires that the religion or belief should be genuinely held. This is often expressed in terms of religion or belief needing to have a level of ‘cogency, seriousness, cohesion and importance’. However, adjudicating this is tricky and troublesome. As the Strasbourg Court re-articulated in Eweida v UK, determining the genuineness of the claim ‘is incompatible with any power on the State’s part to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed.’ The role of the court is to determine whether the claim is made in good faith, not whether it is a good faith. 

Requiring that there be a ‘significant disadvantage’ before Article 9 claims can be brought would be contrary to the Strasbourg case law, since it creates a higher threshold. This would be particularly jarring since the Strasbourg case law has relaxed previously articulated thresholds such as the specific situation rule. Furthermore, Eweida v UK articulated again that in order to be a manifestation, the act must be ‘intimately linked’ to the applicant’s religion or belief, but stressed that the existence of a sufficiently close and direct nexus between the act and the underlying belief must bedetermined on the facts of each case. The Strasbourg Court stated clearly that ‘there is no requirement on the applicant to establish that he or she acted in fulfilment of a duty mandated by the religion in question’.

It remains to be seen how the domestic judiciary would interpret any requirement of a ‘significant disadvantage’. Domestic law on indirect discrimination on grounds of religion or belief requires proof of a ‘particular disadvantage’ (Equality Act 2010, section 19); it is unclear as to whether this ‘disadvantage’ requirement has had a detrimental effect there.  However, domestic cases in the aftermath of Eweida v UK suggest that a restrictive approach is already being taken. Cases such as Lee v Ashers Baking Company [2018] UKSC 49 and Kuteh v Dartford and Gravesham Trust [2019] EWCA Civ 818 either do not mention Eweida or dismiss it as not being relevant. This suggests that erecting further thresholds is not necessary and is likely to render Article 9 moribund.   

Conclusion

Particular human rights decisions will inevitably be controversial, divisive and questionable, especially if amplified and distorted through parts of the media and through a political discourse that seeks to demonise the legal profession. It is the very nature of a court case that there are two possible and plausible outcomes. The fact that some decisions in relation to some rights have resulted in decisions that some politicians disagree with is not grounds for tearing down the whole human rights framework. 

Human rights law has settled down over the last twenty years. This is notable in relation to freedom of religion or belief. Specific cases and issues have, of course, proved controversial. Different views can be taken about issues that have arisen, including the wearing of religious dress and symbols, the operation of religious courts and tribunals, and the use of freedom of religion or belief as a defence against claims of discrimination on grounds of sex and sexual orientation. And criticisms can be made of the decisions and reasonings of courts and tribunals. However, overall, it is clear that protections have grown, and there is an increased awareness that freedom of religion covers non-religious beliefs too. There is much more that needs to be done, but the Human Rights Act 1998 has been of pivotal importance in getting us to where we are and in protecting rights. 

The Bill of Rights, or whatever it ends up being called, risks undermining this and, judging by the briefing notes, will reduce protection. This will allow governments and public authorities to trample over the rights that we currently enjoy. The Human Rights Act 1998, though not perfect, already strikes an appropriate balance. The reference to the Bill of Rights in the Queen’s Speech got it wrong. The new Bill would not defend the constitution. Rather, it is an attack on it, and risks unbalancing the power between the legislature and the courts.