Why we must have particular regard to what the law actually says

Simon Lee

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What the Human Rights Act 1998 really says:

Amnesty International UK, Oxfam, Human Rights Watch, the British Institute of Human Rights and 160 other organisations wrote to the Prime Minister in December 2016 urging her to abandon her party’s manifesto pledge to ‘scrap’ the Human Rights Act (HRA) 1988. The HRA, they said, is something to ‘cherish’. That is good news because section 13 of the HRA could do with some cherishing, or even with being read. It states that,

‘If a court’s determination of any question arising under this Act might affect the exercise by a religious organisation (itself or its members collectively) of the Convention right to freedom of thought, conscience and religion, it must have particular regard to the importance of that right.’

Section 13 is routinely ignored, passed over in silence, or dismissed as a ‘dead letter’. This is perhaps because people do not agree with it or because, even if they do agree with it, they are embarrassed by s13 or fear the scorn of those who do not like it. Two years ago, I asked the Commission on Religion and Belief in British Public Life (CORAB) ‘to champion s13 and call for it to survive any reappraisal of the Human Rights Act and to be applied’. One year ago, their Report came out with no mention of what I call this ‘cardinal rule’ of our constitution. This week, the Zutshi-Smith Symposium at the University of Bristol gives me the chance to try again. Why might some participants be prepared now to think afresh about s13?

Hamat

One reason is that this year has brought a case where s13 has been considered at some length. I am grateful to my Open University colleague Jessica Giles for drawing my attention to Hamat v Home Secretary, 18 March 2016. S13 came into play because, as Upper Tribunal Judge Jordan observed in paragraph 6,

‘Deputy Upper Tribunal Judge Saini decided on 19 August 2015 that Judge Petherbridge’s decision should be set aside adopting as his reason the Judge’s failure to address Article 9 and s. 13. Both Article 9 of the Convention and s.13 of the Human Rights Act 1998 are largely unfamiliar to practitioners and this is one of the few cases to come before the Tribunal which expressly raises these provisions as a distinct and separate challenge to the respondent’s removal decision. It was only this aspect of the appeal that was pursued before me.’

Ultimately, s13 did not prevent the Home Secretary from removing Mr Hamat from the UK because of what the judge called his poor immigration history as an illegal immigrant and as an overstayer. Along the way, however, there is much to consider in this judgment and its account of a Muslim community which is advertising for a Farsi-Pashto speaking Imam. The facts and the detailed reasoning can be found at

http://www.bailii.org/uk/cases/UKUT/IAC/2016/286.html.

Prevent

Another reason for exploring ‘particular regard’ is that it is now a phrase with legal meaning in the Prevent structures, whether or not we agree with them. There are six uses of ‘particular regard’ in one section of the Counter-Terrorism and Security Act 2015, see eg s31(2):

‘31 Freedom of expression in universities etc

(2)When carrying out the duty imposed by section 26(1), a specified authority to which this section applies—

(a)must have particular regard to the duty to ensure freedom of speech, if it is subject to that duty;

(b)must have particular regard to the importance of academic freedom, if it is the proprietor or governing body of a qualifying institution.

But does anyone ever change their mind on freedom of religion?

It is not just those cases in which ‘particular regard’ in s13 is directly in point where mindsets can be challenged. The Ashers bakery or ‘gay cake’ case has not hitherto been argued by reference to HRA s12 (‘particular regard’ to freedom of expression) and s13. Same sex marriage is still not allowed by the law in Northern Ireland but does, and should, the law there require a bakery run by a Christian family, who do not support gay marriage law reform, to supply a cake with the slogan ‘Support Gay Marriage’? s13 applies to religious organisations but while the owners think of this bakery as a ‘Christian business’, it is in law, as Morgan LCJ observed, ‘a limited company. It does not have any religious objectives in its Memorandum and Articles of Association although it is common case that its name derives from a passage in the Bible, Genesis 49:20: “Bread from Asher shall be rich, and he shall yield royal dainties”.’

“Section 13 is routinely ignored, passed over in silence, or dismissed as a ‘dead letter’.”

Still, the gay cake case has already shown that some people are prepared to take freedom of conscience and religion seriously enough to change their minds. It might be thought that the guardians of political correctness would side with the customer, Gareth Lee (no relation), but the cake of the constitutional world has been turned upside down in that it is the redoubtable campaigner Peter Tatchell who has changed his mind, who is in favour of freedom of religion and conscience for the bakers who did not wish to supply the slogan ‘Support Gay Marriage’ and it is his views which have held sway with leader-writers in, for instance, The Guardian criticising the decision of the Northern Ireland Court of Appeal in a case which is now destined for the UK’s Supreme Court.

So just when the judges might be described as catching up with what they think is the politically correct liberal secular view, it turns out that they are once again behind the times (and indeed behind The Times).

Just the icing on the cake?

“Freedom of thought, conscience and religion is an essential ingredient in our society, a fundamental mix that gives us our constitutional base.”

It would be misleading to think of freedom of religion as merely the icing on the cake of public life in the UK. Freedom of thought, conscience and religion is an essential ingredient in our society, a fundamental mix that gives us our constitutional base. CORAB’s refusal to take s13 seriously left its nicely iced Report with a soggy bottom:

The CORAB report could have been even more of a showstopper if Peter Tatchell had been one of the Commission’s bakers or if an s13 signature bake on the technical side of the law had been allowed to prove its worth. If the Zutshi-Smith Symposium encourages refreshing looks at stale accounts of human rights law, 2016 might yet see the freedom of religion cake, along with the rest of the world, turned upside down.

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Simon Lee is a Fellow of St. Edmund’s College, Cambridge, Professor of Law and Director of Citizenship & Governance Research at The Open University, and emeritus professor of jurisprudence at Queen’s University, Belfast. Simon Lee writes about law, ethics, religion, politics, history and sport. His books include Law & Morals (Oxford University Press, 1986), Judging Judges (Faber, 1988), The Cost of Free Speech (Faber, 1990), Uneasy Ethics (Pimlico, Random House, 2003; Random House e-book, 2011) and Vincent’s Club Oxford 1863-2013 (Third Millennium, 2014, foreword by Sir Roger Bannister).

 

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Citation

To cite this article, please use the following: Lee, Simon (2017) ‘Why we must have particular regard to what the law actually says’Public Spirit (January, 2017: http://www.publicspirit.org.uk/?p=4596&preview=true)

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