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‘Public Reason’, Judicial Deference and the Right to Freedom of Religion and Belief under the
Human Rights Act 1998
Peter Cumper and Tom Lewis*
1. Introduction
Human rights claims are often motivated by weighty considerations. But few motivating factors are
arguably as powerful as those which typically underpin claims involving the right to freedom of
religion and belief under Article 9 of the European Convention on Human Rights (ECHR). In such
cases litigants often consider that they have a sacred duty to act (or refrain from acting) in a particular
way, believing that failure to do so may displease a supreme being or even lead to dire consequences
in an afterlife, perhaps for all eternity. To date the courts have acknowledged, in express terms, the
unparalleled and existential significance of particular manifestations of religious belief to believers
themselves. British judges have made a number of statements in which they have accepted the
centrality of faith in the lives of those bringing such claims before them, recognising that in view of
religion’s association with the transcendental, the divine and the eternal, it is the most important thing
for many people.
1
However, although judges avowedly recognise the subjective importance of manifestations of
religious belief, there has been a tendency for the courts to permit such manifestations to be restricted
by legislatures and governments with relative ease, occasionally in pursuit of seemingly
* Peter Cumper: School of Law, University of Leicester, UK; Tom Lewis: Nottingham Law School,
Nottingham Trent University, UK. We should like to thank Elspeth Berry, Paul O’Connell, Adam Tucker, Harry
McVea and an anonymous referee for their helpful comments on earlier drafts. Errors and omissions remain our
own.
1
See eg Cranston J in R (Ghai) v Newcastle City Council (Ramgharia Gurdwara, Hitchin and another
intervening) [2009] EWHC 978 (Admin), [2009] WLR (D) 151, [93]; Lloyd LJ in R (Suryananda) v Welsh
Ministers [2007] EWCA Civ 893, [83].
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inconsequential aims. Accordingly, there exists something of a disconnect within the judicial
discourse on freedom of religion and belief under Article 9. Although judges say that the
manifestation of a person’s faith or beliefs is of crucial importance to religious claimants, their words
appear not always to be matched by their actions, for the ‘public good’ grounds on which the courts
permit such manifestations to be restricted are, on occasion, incongruously slender. As a result, the
courts risk appearing disingenuous, and a religious believer may ask, ‘If the court really accepted that
this manifestation of my belief is as significant to me as it maintains, why restrict it on such flimsy
grounds?’
One particularly credible explanation for this disconnect is the fact that the courts, when adjudicating
religious rights claims, are obliged to employ only neutral reasons that are accessible to, and graspable
by, everyone. This judicial obligation is rooted in one of deepest strands of liberal thought, going back
to the religious conflicts of the seventeenth century and the philosophy of Locke and Spinoza: the
need for a separation of church and state, so as to ensure respect for the conscience of individuals, and
to avoid the suppression of minorities.
2
An important part of this principle is that, in a democracy,
people with particular religious beliefs—which are not understood, still less held, by others—should
not be able to influence the formulation of coercive law and public policy solely on the basis of these
same beliefs. As Thomas Nagel has put it:
… it must be possible to present to others the basis of your own beliefs, so that once you have
done so, they have what you have, and can arrive at a judgment on the same basis. That is not
possible if part of the source of your conviction is personal faith or revelation—because to
report your faith or revelation to someone else is not to give him what you have, as you do
when you show him your evidence or give him your arguments.
3
2
John Locke, ‘A Letter Concerning Toleration’ (1685) in David Wootton (ed), John Locke: Political
Writings (Penguin, 1993) 390; Benedict de Spinoza, A Theologico-Political Treatise and a Political Treatise,
RHM Elwes (trans) (Dover, 2004).
3
Thomas Nagel, ‘Moral Conflict and Political Legitimacy’ (1987) 16 Philosophy and Public Affairs
215, 232 (emphasis in original).
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The core reason for this doctrine of restraint is the necessity of preventing unbridled religious
influence within the public forum leading to the elevation of one religion over other systems of belief
and, ultimately, to the placing of restrictions on (or even the snuffing out of) the freedoms of others.
4
John Rawls, with whom this theory is usually associated, refers to the type of reason that must be used
in the public domain as ‘public reason’,
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although others refer to similar (although distinct) concepts
of ‘secular reason’
6
and ‘civic reason’.
7
While there has been much criticism of the idea and ideal of
public reason,
8
a general consensus exists on at least one aspect of this theory: that when state
officials are exercising judicial power they should not let religious views influence their judgments.
As Rawls observed, the Court is the ‘exemplar of public reason’,
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and today, on matters of religion as
elsewhere, this point of principle is sufficiently well established to be regarded as a virtual axiom.
In this article we contend that, whilst correct as a matter of principle, this adherence to public reason
has certain unforeseen consequences for the adjudication of religious rights, and contributes to the
disconnect identified above. Even though the courts seem willing to accept that claimants genuinely
4
See Robert Audi, ‘The Separation of Church and State and the Obligation of Citizenship’ (1989) 18
Philosophy and Public Affairs 259. Moreover, even Kent Greenawalt, who is much more open to the influence
of religious reasons in the public sphere than Audi, accepts that ‘the legislator should eschew reliance on
religious premises insofar as he can’: Kent Greenawalt, Religious Convictions and Political Choice (Oxford
University Press, 1988) 237.
5
John Rawls, Political Liberalism—with New Introduction and ‘Reply to Habermas’ (Columbia
University Press, 1996).
6
See Robert Audi, Religious Commitment and Secular Reason (Cambridge University Press, 2000).
7
See Abdullahi An-Na’im, Islam and the Secular State: Negotiating the Future of Sharia (Harvard
University Press, 2008).
8
See eg Nicholas Wolterstorff, ‘The Role of Religion in Political Issues’ in Robert Audi and Nicholas
Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate (Rowman
and Littlefield, 1997); Jeremy Waldron, ‘Religious Contributions in Public Deliberation’ (1993) 30(4) San
Diego Law Review 817; Jürgen Habermas, Between Naturalism and Religion (Polity, 2008) ch 5.
9
Rawls (n 5) 216. This of course goes much further back than Rawls. For example, see Locke (n 2) 405.
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believe that particular manifestations of religion or belief are of existential importance, they (the
courts) remain unable to give voice to these beliefs so as to reflect, adequately, the importance placed
upon them by believers. In short there is an absence of vocabulary—an ineffability—which prevents a
court in a modern liberal democracy from taking account of manifestations of belief in a way that
adequately conveys the profundity with which claimants hold these very beliefs.
This disconnect is closely associated with the sense of unease that appears to characterise judicial
decision making in respect of religious claims—an unease which often leads, in turn, to the courts
affording considerable discretion to legislatures and governments when restrictions are imposed on
manifestations of religious belief.
10
Whilst willing to accept the great significance of particular
manifestations of belief to the claimants themselves, the courts find such manifestations important for
very different reasons than people of faith. Thus, unlike the believer, for whom the religious
manifestation or practice is important because they believe the underlying doctrine to be true, judges
accept that religion is to be valued for reasons such as respect for individual autonomy, collective
identity or the need for pluralism in a democratic society.
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As a result UK courts have often been
willing to accept that, notwithstanding the importance of religion to the individuals concerned,
legislatures and governments are better placed (due to their democratic credentials and/or superior
expertise) than judges to assess the necessity of restrictions on manifestations of religious belief.
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In this regard our argument is not that the UK courts have necessarily made the wrong decisions when
adjudicating on the basis of Article 9 of the ECHR. Rather, it is their reasoning and, in particular, the
10
We use the terms ‘deference’, ‘due deference’, ‘margin of discretion’ and ‘latitude’ interchangeably in
this article to refer to the ‘area of discretionary judgment’ afforded by domestic courts under the Human Rights
Act 1998. We use the term ‘margin of appreciation’ only in the context of the jurisprudence of the European
Court of Human Rights.
11
See eg Timothy Macklem, ‘Faith as a Secular Value’ (2000) 45(1) McGill Law Journal 1; Kokkinakis v
Greece (1993) 17 EHRR 397, [31].
12
See eg Suryananda (n 1) [79]–[80] (Thomas LJ); R (Begum) v Governors of Denbigh High School
[2006] UKHL 15, [2005] 5 WLR 3372, [34] (Lord Bingham); [63]–[64] (Lord Hoffmann); [84] (Lord Scott);
[97] (Baroness Hale).
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way in which their decisions have been characterised by the affording of judicial deference, that is
problematic.
13
We contend that, in deciding many of the cases under Article 9, the same results could
have been reached without such excessive margins of discretion being afforded by the judges to the
executive and/or legislature, since the state’s arguments for restriction in most of these cases would
have been relatively strong in any case. The courts’ tendency to grant decision-makers a wide margin
of discretion in the field of religion and belief, has served to muddy further what are (given the
challenges of accommodating faith in a predominantly secular age) already murky waters, making
judges appear to be loath to protect religious human rights. Perhaps even more significantly, the use
of such judicial deference in future Article 9 cases may well have a decisive effect upon their
outcome, even in those cases where the state’s arguments for restriction are comparatively weak. That
the risk of this is real can be seen in a case whose particular facts illustrate graphically the
‘disconnect’ highlighted above, the Administrative Court’s decision in Ghai v Newcastle City
Council, where a local council’s refusal to allow a Hindu man to be cremated on an outdoor funeral
pyre was held not to breach Article 9.
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In this case the wide latitude afforded by the court resulted in
a serious undervaluing of the religious manifestation at stake, in pursuit of a remarkably tenuous
governmental/legislative aim. The case of Ghai, we suggest, provides a cautionary tale and a timely
warning of possible problems associated with the affording of due deference in relation to Article 9. If
the logic of the Administrative Court in Ghai were to inform future adjudication, this would almost
13
Constraints of space demand that, for the purposes of this article, we consider only cases that were
decided on the basis of Art 9 ECHR, as opposed to ones where the claims were based primarily on
discrimination law (such as the Employment Equality (Religion or Belief) Regulations 2003, the Equality Act
2006, and now the Equality Act 2010), which raise different, albeit oft related, issues.
14
Ghai (Admin) (n 1). As will be seen, this decision was overturned by the Court of Appeal, which, as a
result of its interpretation of the contested provisions, was able to avoid engaging with the human rights
arguments in the case. See n 90 below.